Terms and Conditions

1. Definitions

1. In these Conditions, unless the context otherwise requires, the following definitions apply:

2. Basis of Agreement

1. The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2. The Order shall only be deemed to be accepted on the earlier of Drimlike:

1. issuing written acceptance of the Order; or
2. commencing provision of the Services, at which point and on which date the Agreement shall come into existence (Commencement Date).

3. Any quotation given by Drimlike shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
4. Any samples, drawings, descriptive matter or advertising issued by Drimlike 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 Agreement or have any contractual force.

3. Duration of Agreement

1. The Agreement shall continue, unless terminated earlier in accordance with Condition 15, until the earlier of (i) completion of the Services to be provided under the Order; and (ii) either party gives to the other party written notice to terminate. Such notice must give the requisite Notice Period and shall expire on the later of:

1. the end of the Notice Period; and
2. the end of the Minimum Term (if any).

4. Application of Conditions

1. These Conditions shall:

1. apply to and be incorporated in the Agreement;
2. apply to the exclusion of any other terms that the Client seeks to impose or incorporate; and
3. prevail over any inconsistent terms which are implied by law, trade custom, practice or course of dealing.

2. No addition to, variation of, exclusion or attempted exclusion of these Conditions shall be binding on Drimlike unless in writing and signed by a duly authorised representative of Drimlike.
3. The Client acknowledges that Drimlike may provide access to its software-as-a-service products as part of the Services. Any access and use of such products will be subject to additional terms and conditions, which the Client must accept prior to accessing such products.

5. Changes Procedure

1. Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a relevant Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:

1. the Services;
2. the Charges;
3. the timetable for the Services; and
4. any of the other terms of the Agreement.

2. If Drimlike, acting reasonably, wishes to make a change to the Services it shall provide a draft Change Order to the Client. The Client shall not unreasonably withhold or delay consent to any such draft Change Order.
3. If the Client wishes to make a change to the Services, it shall notify Drimlike and provide as much detail as Drimlike reasonably requires of the proposed changes, including the timing of the proposed change. Drimlike shall, as soon as reasonably practicable after receiving the required information, provide a draft Change Order to the Client.
4. If the parties agree to a Change Order, they shall sign it and that Change Order shall amend the Agreement.

6. Supply of Services and Drimlike Responsibilities

5. Drimlike shall:

5. cooperate with the Client in all matters relating to the Services;
6. use all reasonable endeavours to manage and complete the Services, and deliver the Deliverables to the Client, in accordance with the Specification in all material respects;

7. obtain all licenses and consents which are specially stated in the Order to be the responsibility of Drimlike to obtain;
8. comply with all Applicable Laws as required to enable Drimlike to provide the Services; and
9. maintain complete and accurate records relating to the provision of the Services under the Agreement, including (where applicable) records of the time spent and materials used by Drimlike in providing the Services.

6. Drimlike warrants to the Client that the Services will be provided using reasonable care and skill.
7. Drimlike reserves the right to amend the Specification if necessary to comply with any Applicable Law or regulatory requirements, or if the amendment will not materially affect the nature or quality of the Services, and Drimlike shall notify the Client in any such event.

7. Hosting Services and Service Levels (SLA)

1. Drimlike will, where applicable and as part of the Services, provide the Client with Drimlike’s standard hosting services via data centres based in France and hosted by OVH. We undertake to intervene within 4 hours of receipt of the first alert.
2. Unless otherwise agreed in the Order, Drimlike agrees to use all commercially reasonable efforts to achieve the following service levels in relation to hosting services (Service Levels):

1. Network: 99% accessibility on the internal High Availability Private Cloud data centre network;
2. Internet Connectivity: 99% High Availability Private Cloud internet connectivity;
3. Host Servers: 99% availability on the High Availability Private Cloud host servers;
4. Storage: 99% availability on its storage systems, in each case, with the exception of any downtime as a result of (i) scheduled maintenance works (which Clients will be notified of in advance); (ii) Client Cause; or (iii) a Force Majeure Event.

3. Disaster recovery plan: Drimlike has a disaster recovery plan in the event of a major disruption to its online services. This plan includes measures to identify and assess risks, procedures to restore essential services as quickly as possible, as well as regular tests to ensure the reliability of this plan.
4. In the event of non-compliance with the Service Levels during any calendar month, and provided the Client has notified Drimlike of such non-compliance, the Client shall be entitled to 5% of the total monthly amount of the next hosting invoice, per hour of unavailability, limited to 100% of the total monthly hosting invoice amount.

8. Support Services and Security

1. Drimlike shall, on request, provide the Client with Drimlike’s standard customer support services at Drimlike’s then current rates. Drimlike may amend its policy for provision of such standard support services in its sole and absolute discretion from time to time. The Client may purchase enhanced support services separately at an additional cost to be agreed between the parties.

2. Drimlike will at all times comply with its Security Breach Policy.

9. Delivery Milestones

1. Any estimate given by Drimlike in relation to performance of any stage of the Services is given in good faith having regard to the information made available by the Client and Drimlike shall use reasonable endeavours to meet any performance dates set out in the Specification or otherwise. However, performance dates provided by Drimlike in relation to the Services are, in the absence of specific written agreement to the contrary, estimated only and no such performance date (or any confirmation or variation of them in subsequent correspondence or reports) shall be deemed in any circumstance to be undertakings, warranties or contractual conditions.

2. If Drimlike’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Client or its agents, subcontractors, consultants or employees, Drimlike shall not be deemed in breach of its obligations under the Agreement or otherwise liable for any costs, charges or losses sustained or incurred by the Client, in each case, to the extent arising directly or indirectly from such prevention or delay.

10. Client Responsibilities

3. The Client shall:

5. ensure that the terms of the Order and any Specification are complete and accurate;
6. cooperate with Drimlike in all matters relating to the Services;

7. provide, for Drimlike, its agents, subcontractors, consultants and employees, such access to the Client's facilities as may reasonably be requested by Drimlike for the purposes of performing the Services;

8. respond promptly to any request by Drimlike to provide direction, information, approvals, authorisations or decisions that are reasonably necessary for Drimlike to perform Services in accordance with the requirements of the Agreement;

9. provide such information, documents and materials as Drimlike may reasonably request in order to carry out the Services, in a timely manner, and ensure that they are accurate and complete in all material respects; and

10. obtain and maintain all necessary licenses and consents and comply with all Applicable Laws as required to enable Drimlike to provide the Services, in all cases before the date on which the Services are to start.

11. Approval of Services

1. On completion of the Services, or any delivery milestone, Drimlike will notify the Client and the Client shall have the opportunity to review the relevant Deliverables. The Client shall be obliged to accept Deliverables if they accord in all material respects with the Order and any specification for the Deliverables signed by the parties in writing. The Client shall notify Drimlike in writing if the Deliverables (or part thereof) do not comply with the requirements of the Agreement with full details of any such non-compliance and shall permit Drimlike a reasonable opportunity to replace or re-perform the relevant Deliverables. If the Client does not notify Drimlike of any non-compliance within the requisite 7 day period, the Client shall not be entitled to reject the Deliverables and shall be bound to pay the charges for the Deliverables as if the Deliverables have been delivered in accordance with the Agreement.  
2. Notwithstanding Condition 11.1, where the Services comprise provision of a website or application, Drimlike will correct, at no additional cost to the Client, any Fault notified to it by the Client within 3 months of completion of the relevant Services. Drimlike takes no responsibility for ongoing functionality or maintenance after such period unless separately agreed under a maintenance contract.
3. The Client acknowledges that any website or application built from a graphic design may not exactly match the original design due to the difference between the display in design software and the rendering of HTML code by internet browser software. Whilst Drimlike agrees to try and match the design as closely as is possible when building the code, if the Client requests design or content alterations to pages that have already been completed, new pages or different functionality other than that specified in the original quotation, Drimlike reserves the right to charge separately for these alterations.
4. The Client acknowledges that there may be a reasonable variance in colour between proofings, colours on screen, and final printed items. Accordingly, Drimlike is unable to guarantee 100% consistency and accuracy of colour and may not always be able to achieve the exact result expected by the Client. Drimlike accepts no responsibility for images printing poorly due to the Client providing low resolution images.

12. Charges and Payment

1. The charges for the Services shall be the charges set out in the quotation by Drimlike, or, if no charges are quoted, the charges shall be calculated in accordance with Drimlike’s then current daily fee rates.
2. Drimlike shall invoice the Client for the charges at the intervals specified, or on the achievement of the delivery milestones indicated, in the Specification. If no intervals are so specified Drimlike shall invoice the Client for:

1. 50% of the charges on or before the Commencement Date; and
2. the remaining charges on completion of the Services (or on completion of the corresponding delivery milestone).

3. The Client shall pay each invoice submitted to it by Drimlike in Sterling, Euros or US Dollars within 30 days of receipt to the bank account nominated in writing by Drimlike from time to time. All invoices shall, unless otherwise agreed, be submitted by email and payment shall be made by wire transfer or credit card. For the avoidance of doubt, cheques are not accepted.
4. Without prejudice to any other right or remedy that it may have, if the Client fails to pay Drimlike any sum due under the Agreement on the due date:

1. the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest will accrue each day at 2.5% a year above the Bank of Scotland’s base rate from time to time;
2. Drimlike may suspend all or part of the Services and performance of any other contract between the parties until payment has been made in full.

5. All sums payable to Drimlike under the Agreement are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice.
6. The Client shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Drimlike may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Client against any amount payable by Drimlike to the Client.

13. Intellectual Property

1. In relation to the Client Materials:

1. the Client and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials; and
2. the Client grants to Drimlike a fully paid-up, non-exclusive, royalty-free licence to copy and modify the Client Materials for the term of the Agreement for the sole purpose of providing the Services to the Client.

2. In relation to the Drimlike Materials:

1. Drimlike and its licensors shall retain ownership of all Intellectual Property Rights in the Drimlike Materials; and
2. in consideration for full payment by the Client to Drimlike of all charges due under the Agreement, and unless otherwise agreed in the Order, Drimlike grants to the Client a non-exclusive, royalty-free, perpetual licence to use the Drimlike Materials necessary for receipt and use of the Services and the Deliverables in its business for the purposes set out in the Specification.  

3. In relation to the Deliverables, unless otherwise agreed in the Order, the Intellectual Property Rights in all Deliverables shall:

1. be assigned to the Client on payment of all sums due under the Agreement without further formality; and
2. automatically be deemed licensed to Drimlike to use for the purposes of providing the Services.

14. Confidentiality

1.         Each party undertakes that it shall not at any time without the prior written consent of the other party disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by this Condition 14.
2. Each party may disclose the other party’s Confidential Information:

1. to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement. Each party shall ensure that any such person to whom it discloses the other party’s confidential information complies with this Condition 14; and
2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

3. No party shall use any other party’s Confidential Information for any purpose other than to perform its obligations under the Agreement.

15. Termination

1. Without affecting any other right or remedy available to it, either party to the Agreement may terminate it with immediate effect by giving written notice to the other party if:

3. the other party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

4. the other party 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), 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;
5. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
6. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.

2. Without affecting any other right or remedy available to it, Drimlike may terminate the Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.

16. Exit Obligations and Survival

1. On termination or expiry of the Agreement, the Client shall immediately pay to Drimlike all outstanding unpaid invoices and interest and, in respect of any Services supplied but for which no invoice has been submitted, Drimlike may submit an invoice, which shall be payable immediately on receipt.
2. Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.
3. Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

17. Limitation of Liability

1. Drimlike has obtained insurance cover in respect of its own legal liability for £1,000,000. The limits and exclusions in this Condition 17 reflect the insurance cover Drimlike has been able to arrange and the Client is responsible for making its own arrangements for the insurance of any excess loss.
2. Nothing in the Agreement shall limit or exclude either party’s liability for:

1. death or personal injury caused by its negligence;
2. fraud or fraudulent misrepresentation; or
3. any other liability which cannot be limited or excluded by Applicable Law.

3. The commitments given by Drimlike as to compliance of the Services are set out in Condition 6. In view of these commitments, the terms implied by the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
4. The Client acknowledges and agrees that Drimlike does not control search engine algorithms and accordingly Drimlike does not guarantee, and accepts no liability for, website or application listings on search engines.
5. Subject to Condition 17.2: 

1. neither party shall have any liability to the other party, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, for any indirect and consequential loss arising out of or in connection with the Agreement;

2. Drimlike’s total liability to the Client whether arising in contract, delict (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement shall be limited to the lessor of 100% of the total charges paid by the Client under the Agreement in the 3 month period preceding the date on which the claim arose or £1,000,000.

18. Data Protection

1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This Condition 18 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. The parties agree to comply with Data Protection Legislation and the parties agree they will enter into a Data Processing Agreement at the time of entering into these Terms and Conditions.
2. The parties acknowledge that, in relation to any personal data processed by Drimlike on behalf of the Client, for the purposes of the Data Protection Legislation, the Client is the controller and Drimlike is the processor. The Specification sets out, as applicable, the scope, nature and purpose of processing by Drimlike, and the types of personal data and categories of data subject. The duration of processing will be the duration of this Agreement.
3. Without prejudice to the generality of clause 18.1 above, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any personal data to Drimlike and/or lawful collection of any personal data by Drimlike on behalf of the Client for the duration and purposes of this Agreement. 
4. Drimlike shall, in relation to any personal data processed in connection with the performance by Drimlike of its obligations under the Agreement:

1. process that personal data only on the documented written instructions of the client (unless otherwise required by Applicable Law);
2. maintain records of any processing of personal data carried out on behalf of the Client;
3. ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
4. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
5. not transfer any personal data outside of the UK unless it has provided appropriate safeguards in relation to the transfer;
6. assist the Client, at the Client’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7. notify the Client without undue delay on becoming aware of a personal data breach;
8. at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the Agreement (unless required by Applicable Law to store the personal data);

5. The Client consents to Drimlike appointing third-party processors of personal data for the purposes set out in Drimlike’s privacy notices (as may be updated from time to time). Drimlike confirms that it has entered, or will enter (as the case may be), a written agreement with any such third-party processor incorporating terms which are substantially similar to those set out in this Condition 18.
6. The Client warrants that:

1. it is not aware of any circumstances likely to give rise to breach of the Data Protection Legislation (including any personal data breach);
2. it has a lawful basis under the Data Protection Legislation to transfer the personal data to Drimlike for processing under the Agreement and such use will comply with all Data Protection Legislation;
3. it will promptly notify Drimlike of any action Drimlike must take to assist it with ensuring compliance with its obligations under Data Protection Legislation, including with request to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and
4. the personal data is necessary, adequate, relevant, accurate and up-to-date and it will notify Drimlike promptly of any changes to the personal data.

7. The Client shall indemnify Drimlike against any loss or damage suffered by Drimlike in relation to any breach by the Client of its obligations under this Condition 18.

19. Non-solicitation

1. The Client shall not, during the term of the Agreement or for the period of twelve months thereafter, directly or indirectly (other than by general advertising) solicit, seek, procure, or enter into any arrangement for the provision of, the services of any employee or agent of Drimlike who has been engaged in the performance of any of the Services provided to the Client under the Agreement without the prior written consent of, and upon such terms as are specified by, Drimlike.

20. Notices

1. Any notice or other communication given to a party under or in connection with the Agreement shall be:

1. in writing;
2. sent for the attention of the contact and at the address or email address listed in the Services Confirmation (or such other contact/address as that party may notify in accordance with this Condition 20); and
3. sent by email or delivered by hand or by pre-paid first-class post or other next working day delivery service.

2. Any notice or communication shall be deemed to have been received:

1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
2. 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 or at the time recorded by the delivery service; and
3. if sent by email, at the time of transmission.

3. This Condition 20 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

21. Entire Agreement

1. The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representation and understandings between them, whether written or oral, relating to its subject matter.
2. Each party agrees that it 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 Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statements in the Agreement.

22. Severance

1. If any provision or part-provision of the Agreement 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 the Agreement.
2. If any provision or part-provision of the Agreement is deemed deleted under Condition 22.1, 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.

23. Dispute Resolution Procedure

1. Any dispute arises in connection with the Agreement, the Account Managers of the parties shall, within 7 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute. If they fail to resolve the issue it shall be escalated to the chief operating officer (or equivalent position) within each party (or his/her nominee) to meet in good faith within 14 days of the previous meeting to try and resolve the dispute.
2. If the procedure set out in Condition 23.1 does not resolve the dispute, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must give notice in writing (ADR notice) to the other party requesting mediation. A copy of the request shall be sent to CEDR Solve. The mediation shall start not later than 45 days after the date of the ADR notice.
3. No party may commence any court proceedings or arbitration in relation to any dispute arising out of the Agreement until it has attempted to settle the dispute by mediation, and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.

24. Miscellaneous

1. Set off. All amounts due under the Agreement 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).
2. Force majeure. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (Force Majeure Event).
3. Subcontractors. Drimlike may employ any person, company or firm as its agent or subcontractor to perform all or any of its obligations or duties under the Agreement, or to secure the production or provision of any Services required in connection with the performance of the Agreement. The Client acknowledges that Drimlike may, in carrying out Services for the Client, be acting as an agent for either one or both of the Client and/or any third party subcontractor. The Client shall not be entitled to assign its rights or transfer its obligations under the Agreement without the prior written consent of Drimlike.
4. Variation. No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
5. Waiver. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
6. Third party rights. The Agreement does not give rise to any rights under the Contracts (Third Party Rights)(Scotland) Act 2017 to enforce any term of the Agreement.
7. Governing Law. The Agreement, 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 Scotland.
8. Jurisdiction. Each party irrevocably agrees that the courts of Scotland shall have the non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.