Terms & Conditions
madeby.studio Ltd Terms and conditions

These Terms and Conditions along with the relevant Key Terms sheet form a legally binding agreement and set out the basis on which we will provide services to you.

1        Definitions and interpretation

1.1        Words shall have the meanings given to them in this Agreement, including without limitation as set out below:

1.2        Interpretation

In this Agreement, unless the context otherwise requires:

1.2.1              the singular includes the plural and vice versa;

1.2.2            references to subclauses, clauses, Schedules are to subclauses, clauses, Schedules of this Agreement, and references to paragraphs are to paragraphs in a Schedule;

1.2.3            references to this Agreement include its Schedules;

1.2.4            references to persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality);

1.2.5            ‘including’ (or similar words) means including without limitation;

1.2.6            clause headings do not affect their interpretation; and

1.2.7            references to legislation (including any subsidiary legislation) include any modification or re-enactment thereof.

2        Duration

2.1                If you have contracted us on a stand-alone Project basis, this Agreement will commence on the Commencement Date and will terminate on Project Completion or as otherwise agreed between the parties or terminated earlier in accordance with this Agreement.

2.2               If you have contracted with us on a retainer basis, this Agreement will commence on the Commencement Date and will continue for the Initial Retainer Period after which it shall be renewed for further periods equal to the Initial Retainer Period unless terminated in accordance with this Agreement.

3        Project

3.1                We shall undertake the Project (or in the case of a retainer, such Projects as agreed from time to time) in accordance with the Specification and subject to the terms of this Agreement and you shall pay us the Fees in accordance with the Specification and otherwise comply with the terms of this Agreement.

3.2               Where applicable, the Project will start on the Commencement Date and shall be completed on or before Project Completion.

4        Retainer

4.1                If you have contracted with us on a retainer basis, you shall be entitled to use of our studio during such hours and dates as set out within the Specification. You shall not be entitled to roll over any unused hours into following months and any studio hours not used within the agreed period shall be forfeited.

4.2               In the event that you fail to pay our Fees when due, without limiting or affecting any other right or remedy available to us, we reserve the right to suspend further performance of the Services until such time as we have received payment in full of any outstanding sums payable to us;

4.3               We shall use our reasonable endeavours to meet any performance-based targets set out within the Specification or as otherwise agreed between the parties. We cannot guarantee that any such performance-based targets will be achieved and we specifically deny any implied or express representation made in respect of such performance results.

5        Services

5.1                We shall provide the Services in accordance with the terms of this Agreement, including as set out in the Specification.

6        Fees and Expenses

6.1                The Fees, payments and expenses for the Website and the Services are as set out in the Specification agreed between the parties.

6.2               Unless otherwise stated in the Key Terms sheet, the Fees will include the cost of up to two rounds of amendments. We may apply additional charges on an hourly rate basis, at such rate as confirmed in writing from time to time, for any rounds of amendments above the specified number included within the Fees.

7         Taxes and Duties

7.1                 All amounts due under this Agreement are exclusive of VAT, sales or other tax applicable which shall be paid in addition by You at the rate and in the manner for the time being prescribed by law.

8        Invoicing and Payment

8.1                We shall invoice you for all sums due under this Agreement on completion of the Project or as specified in the Specification, if earlier.

8.2               You shall pay such sums in full within 30 days from the date of invoice or on the due date for payment specified in the Specification, if earlier.

8.3               Amounts payable to us under this Agreement shall be paid by electronic funds transfer unless otherwise notified by us to you in writing in accordance with this Agreement:

9        Interest

9.1                Where sums due hereunder are not paid in full by the due date, we may, without limiting our other rights, charge interest on such sums at the Late Payment of Commercial Debts rate in force from time to time.

9.2               Interest will apply from the due date for payment until actual payment in full, whether before or after judgement.

10         Supply Obligations

10.1              We shall undertake the Project and provide the Services:

10.1.1           with all reasonable skill and care;

10.1.2          at the times and in the manner required in the Specification or otherwise specified in this Agreement.

10.2             We shall respond promptly from time to time to your reasonable requests for additional information or assistance to ensure the successful completion of the Project.

10.3            We may submit digital and/or physical proofs of the Deliverables to you at any stage during the Project for your feedback or approval. We shall not be liable for any errors to such proofs identified after you have given your final approval.

11        Customer Obligations

11.1                You shall:

11.1.1             provide accurate and complete Customer Content to us at the time and in the format required by the Specification to enable us to develop the Deliverables and to provide the Services;

11.1.2            respond promptly from time to time to the reasonable requests of us for relevant information, instructions and assistance, including reasonable access to and cooperation by your personnel, to ensure the successful completion of the Project.

11.2               You acknowledge and accept that we shall not be liable for any delay in or failure of the provision of the Services to the extent caused by:

11.2.1            your failure to provide information, required in accordance with clause 11.1, in a timely manner; or

11.2.2          your failure to provide us with adequate instructions for performance when requested by us.

12        Website Hosting & Technical Issues

12.1               Unless otherwise agreed, any licences/licence extensions purchased by us on your behalf as part of the development of the Website or Application shall be for a maximum period of one year. You shall be responsible for renewing and/or purchasing any further licences required following expiry of the initial one-year period.

12.2             If during the Project we identify that an extension to an existing licence is required for the development of the Website, we shall notify you and a licence may be purchased at your expense before the project is finalised.

12.3             We shall not be liable for any alterations, including: additions, modifications and deletion of files and directories, made to the Deliverables made by yourself or a third party. If you require us to make any further amendments to the Deliverables following your final approval, such further amendments will be separately quoted for and shall not form part of the original Scope and Fees.

12.4             If you have purchased our Website maintenance service, we will ensure that the Website and any relevant plugins are kept up to date. If you have not purchased our Website maintenance service, you shall be responsible for maintaining and updating the Website and installing any plugins required from time to time.

12.5             We cannot guarantee that the functions contained within any webpage, app or Project will be error or defect free or that we will be able to rectify any error or defect. Without limitation, we specifically deny any implied or express representation that the Website, Application or Project will be fit (i) to operate in conjunction with any hardware items or software products other than with those that are identified in the Specification as being compatible, or (ii) to operate uninterrupted or error free and we are not liable for any costs or effects of an interruption or error.

12.6             We shall not be liable for any losses resulting from errors or interruption to the Website, Application or Project caused by third party suppliers to any website hosting services provided within the Services.

13         Warranties

13.1               We warrant to you that:

13.1.1            we have the right, power and authority to enter into this Agreement and grant to you the rights contemplated in this Agreement, and to supply the Website and perform the Services;

13.1.2          we have all rights and licences to provide the Supplier Content and any Third Party Content (which it has been agreed in the Specification that We will license);

13.1.3          the Website (excluding any Customer Content or Third Party Content) does not:

(a)               infringe the Intellectual Property Rights of any third party;

(b)               contain Content which is fraudulent, defamatory, libellous, threatening or harassing, obscene, indecent or pornographic or otherwise contrary to law;

(c)               contain any viruses or other harmful or intrusive programs or other code.

13.1.4          the Services do not and shall not infringe the Intellectual Property Rights of any third party;

13.1.5          we will perform the Services with reasonable care and skill.

13.2            You acknowledge that we are not liable for any loss or damage incurred by you to the extent that this results from any failure by you to discharge your obligations under this Agreement.

13.3             You warrant to us that:

13.3.1          you have the right, power and authority to enter into this Agreement and grant to us the rights contemplated in this Agreement, and to receive the Deliverables and the Services;

13.3.2         you have all rights and licences to provide the Customer Content and any Third Party Content (which it has been agreed in the Specification that Customer will license) and to grant all necessary licences to us to develop the Deliverables and to provide the Services;

13.3.3         any Customer Content will not:

(a)               be fraudulent, defamatory, libellous, threatening or harassing, obscene, indecent or pornographic or otherwise contrary to law;

(b)               infringe the Intellectual Property Rights of any third party; or

(c)               contain any viruses or other harmful or intrusive programs or other code.

13.4             All other warranties and representations as to the Website, whether statutory or implied, are hereby expressly excluded to the fullest extent permitted by law.

13.5             Any warranties given by us shall be subject to you using the Website in compliance with this Agreement and any documentation supplied with it.

14         Intellectual Property Rights

14.1               In consideration of the Fees payable under this Agreement and the parties’ mutual obligations under this Agreement we assign to you our Intellectual Property Rights in the Content, Specification, user documentation and all other materials created or obtained by us exclusively for you for the Deliverables pursuant to this Agreement, provided that:

14.1.1            all Customer Content shall remain the property of you or your licensors, and you grant to us a non-exclusive, worldwide, non-transferrable, royalty-free licence of such of your Intellectual Property Rights in the Customer Content as are necessary for us to fulfil our obligations under this Agreement; and

14.1.2          except for any Content created or obtained by us exclusively for you for the Deliverables, all Supplier Content and Third Party Content shall remain the property of us or our licensors (as the case may be) and, subject to your compliance with the terms of this Agreement including payment of all Fees, we grant to you a non-exclusive, non-transferrable, royalty-free licence (or sublicence (as the case may be)) of such of our Intellectual Property Rights in the Supplier Content and of such of the Third Party Content as are necessary for you to fulfil your obligations under this Agreement and to enable you to make use of the Deliverables and the Services, which licence or sublicence:

(a)               in the case of software, shall be a licence of object code only unless otherwise expressly provided;

(b)               in the case of Third Party Content it shall be on such terms as we may grant in accordance with the terms between us and the Third Party Content owner; and

(c)               shall be to the extent and for the purpose only of using and maintaining the Deliverables.

14.2             Except as expressly agreed in this clause 12 (Intellectual Property Rights), no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.

14.3             Subject to the foregoing, each party shall be entitled to use in any way it deems fit any skills, techniques or know-how acquired or developed or used in connection with this Agreement provided always that such skills, techniques or know-how do not infringe the other party’s Intellectual Property Rights now or in the future or disclose or breach the confidentiality of the other party’s Confidential Information.

15        Intellectual Property Rights indemnity

15.1              You shall indemnify and keep indemnified, and hold harmless, us against all claims, losses damages, costs and expenses incurred by us as a result of, or in connection with any action, demand or claim that use or possession of any Customer Content infringes the Intellectual Property Rights of any third party.

15.2             We shall indemnify and keep indemnified, and hold harmless, you against all claims, losses, damages, costs, and expenses incurred by you as a result of, or in connection with any action, demand or claim that use or possession of the Deliverables (excluding any Customer Content) infringes the Intellectual Property Rights of any third party.

16        Compliance with Data Protection Laws

16.1              The parties agree that you are a Controller and that we are a Processor for the purposes of processing Protected Data pursuant to this Agreement. You shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. You shall ensure all instructions given by you to us in respect of Protected Data (including the terms of this Agreement) shall at all times be in accordance with all Data Protection Laws.

16.2             We shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of this Agreement.

16.3             You shall indemnify and keep indemnified us against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by you of your obligations under this clause 14.

16.4             The parties agree:

16.4.1          we shall only process (and shall ensure our personnel only process) the Protected Data in accordance with this Agreement (including with regard to any transfer to which clause 14.11 relates), except to the extent:

(a)               that alternative processing instructions are agreed between the parties in writing; or

(b)               otherwise required by applicable law (and shall inform you of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and

16.4.2        without prejudice to clause 14.2, if we believe that any instruction received from you is likely to infringe any of the Data Protection Laws, we shall promptly inform you and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing. The Charges payable to us shall not be discounted or set-off as a result of any delay or non-performance of any obligation in accordance with this clause 14.4.2.

16.5             We shall implement and maintain such technical and organisational measures as are reasonably required to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.

16.6             We shall:

16.6.1          not permit any processing of Protected Data by any Sub-Processor without your prior specific written authorisation;

16.6.2        prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, ensure each Sub-Processor is appointed under a binding written contract containing materially the same obligations as under this clause 14 (including those relating to sufficient guarantees to implement appropriate technical and organisational measures) and ensure each such Sub-Processor complies with all such obligations;

16.6.3        remain fully liable to you under this Agreement for all the acts and omissions of each Sub-Processor as if they were its own; and

16.6.4        ensure that all persons authorised by us or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.

16.7             You shall reply to any communication from us requesting any further prior specific authorisation of a Sub-Processor pursuant to clause 14.6 promptly and in any event within [10] Business Days of request from time to time. You shall not unreasonably withhold, delay or condition any such authorisation.

16.8             We shall (at your cost and expense):

16.8.1          assist you in ensuring compliance with your obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing and the information available to us; and

16.8.2        taking into account the nature of the processing, assist you (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of your obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR.

16.9             We shall at your cost and expense refer to you all requests it receives for exercising any Data Subjects’ rights under Chapter III of the GDPR which relate to any Protected Data. It shall be your responsibility to reply to all such requests as required by applicable law.

16.10           We shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to any country or territory outside the United Kingdom or to any International Organisation without your prior written authorisation except where required by applicable law.

16.11             We shall, in accordance with Data Protection Laws, make available to you on request such information that is in its possession or control as is necessary to demonstrate our compliance with the obligations placed on it under this clause 14 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR, and allow for and contribute to audits, including inspections, by you (or another auditor mandated by you) for this purpose (subject to a maximum of [one] audit request in any 12 month period under this clause 14.11).

16.12           We shall notify you without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.

16.13         On the end of the provision of the Services relating to the processing of Protected Data (the Processing End Date), at your cost and expense and your option, we shall either return all of the Protected Data to you or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires us to store such Protected Data. To the extent you have not notified us within [14 days] of the Processing End Date that you require the return of any Protected Data, we are irrevocably authorised to securely dispose of the Protected Data at your cost and expense.

16.14           This clause 14 shall survive termination or expiry of this Agreement:

16.14.1        indefinitely in the case of clause 14.13; and

16.14.2   in the case of all other provisions of this clause 14, until the later of:

(a)               the termination or expiry of this Agreement; or

(b)               return or secure deletion or disposal of the last of the Protected Data in our (or any of its Sub-Processor’s) possession or control in accordance with this Agreement.

17         Limits on Liability

17.1               Subject to the following subclauses, in no event shall our liability to you (whether in contract, tort (including negligence) or otherwise) and in respect of all claims, losses and damages arising under or in connection with this Agreement exceed the Fees paid to us by you in connection with the Services provided to you under this Agreement.

17.2             The above limit on liability shall apply in respect of any indemnities provided by us under this Agreement, including without limitation to the indemnities under clauses 13 (Intellectual Property Rights indemnity) and clause 17 (Confidential Information).

17.3             Our liability to you in contract, tort (including negligence), for misrepresentation (whether innocent or negligent), for breach of statutory duty or otherwise arising out of or in connection with this Agreement shall not extend to any loss of profits, business opportunity, goodwill, data, anticipated savings or any special, indirect or consequential loss or damage whatsoever, even if foreseeable or if we have been advised of the possibility of such damage.

17.4             The parties agree that the limitations on liability in this Agreement are fundamental to the Agreement and are reasonable given their respective commercial positions and ability to purchase relevant insurance in respect of risks under this Agreement. You acknowledge that we would not provide the Deliverables to you without such limitations.

17.5             Notwithstanding the above neither party excludes or limits any liability for:

17.5.1          personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees; or

17.5.2         fraud or fraudulent misrepresentation; or

17.5.3         any breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

17.5.4         any other liability to the extent the same cannot be excluded or limited by law.

18        Force Majeure

18.1               A party will not be liable if delayed in or prevented from performing its obligations hereunder due to Force Majeure, provided that it:

18.1.1            promptly notifies the other of the Force Majeure event and its expected duration, and

18.1.2          uses reasonable endeavours to minimise the effects of that event.

18.2             If, due to Force Majeure, a party:

18.2.1          is unable to perform a material obligation, or

18.2.2         is delayed in or prevented from performing its obligations for a continuous period of more than [90] days,

the other party may, within a further [ten] days terminate this Agreement on notice, otherwise this Agreement shall continue in full force and effect.

19        Confidential Information

19.1              Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the exercise of its rights and performance of its obligations under this Agreement.

19.2             Each party undertakes to:

19.2.1          disclose the other party’s Confidential Information only to those of its officers, employees, agents and contractors (including our personnel) to whom and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement; and

19.2.2         procure that such persons are made aware of and agree in writing to observe the obligations in this clause.

19.3             Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or loss of the other party’s Confidential Information immediately upon becoming aware of the same.

19.4             The provisions of this clause shall not apply to information which:

19.4.1          is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;

19.4.2        is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;

19.4.3        is independently developed by the recipient, without access to or use of such Confidential Information; or

19.4.4        is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant party, where possible, notifies the other party at the earliest opportunity before making any disclosure.

19.5             The obligations under this clause shall survive the variation, expiry or termination of this Agreement for a period of [five] years thereafter.

19.6             Each party (the ‘Indemnifier’) shall indemnify and keep indemnified and hold harmless the other (the ‘Indemnitee’) from and against any losses, damages, liability, costs (including legal fees) and expenses which the Indemnitee may incur or suffer as a result of or arising from any breach by the Indemnifier of its obligations under this clause.

20         Termination

20.1             Either party may without prejudice to its other rights and remedies by notice in writing to the other party immediately terminate this Agreement if the other:

20.1.1          is in material or persistent breach of any of its obligations under this Agreement and if that breach is capable of remedy and the other has failed to remedy that breach within [30] days after receiving written notice requiring it to remedy that breach;

20.1.2        is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986 (IA 1986)) or becomes subject to a moratorium under IA 1986, Pt A1 or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or becomes subject to a restructuring plan under Part 26A of the Companies Act 2006 (CA 2006) or a scheme of arrangement under CA 2006, Pt 26 or any analogous event occurs in any applicable jurisdiction.

20.2           You may without prejudice to your other rights and remedies by notice in writing to us immediately terminate this Agreement if we cease carrying on business.

20.3           Either party for convenience may terminate this Agreement on but not less than 30 days prior written notice to the other.

20.4           In the event of termination of this Agreement for any reason, each party shall within 30 days of such termination return (or, at the other party’s option, destroy) all the other party’s Confidential Information in its possession or under its control and all copies of such information.

20.5           In the event of termination after the work has commenced but before the Fees have been paid in full, you shall be required to pay all outstanding portions of the Fees relating to the Services carried out prior to termination.

20.6           Any part of the Fees paid to us prior to termination shall be non-refundable and we shall be entitled to retain such sums.

21        Dispute Resolution

21.1               If there is a dispute between the parties in relation to any matter under this Agreement, the parties’ respective Authorised Contacts shall meet to try to resolve any such dispute and if they fail to do so with a reasonable time the matter in dispute shall be referred to a senior manager of each party respectively, for them to try to resolve the matter in dispute, failing which the provisions of clause 23 (Governing Law and Jurisdiction) shall apply.

22        Compliance with Law

22.1             Each party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties hereunder, its employees, agents and representatives will comply with all applicable laws and regulations, provided that neither party shall be liable for any breach to the extent that such breach is directly caused or contributed to by any act or default of the other party or its employees, agents and representatives.

23         Entire Agreement

23.1             This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement. Each party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.

24       General

24.1             Each party is responsible for its legal and other costs in relation to the preparation and performance of this Agreement.

24.2            Provisions which by their terms or intent are to survive termination of this Agreement will do so.

24.3           The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.

24.4           For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any rights or remedy of such a person that exists or is available apart from that Act.

24.5           Subject to clause 23.6, no party may assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the other’s prior written consent or except as expressly permitted in this Agreement.

24.6           We shall, at our sole discretion, be entitled to subcontract any of our obligations under this Agreement from time to time to freelancers possessing the required skill and experience to perform the Services in accordance with the terms of this Agreement.

24.7            No amendment or variation of this Agreement will be valid unless agreed in writing by an authorised signatory of each party.

24.8           If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.

24.9           Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.

24.10         All payments under this Agreement will be made without set-off or counterclaim, free and clear of and without deduction of any taxes, levies, duties, charges and withholdings of any kind now or in future imposed in any jurisdiction.

24.11           Each party will, at its own cost, do all further acts and execute all further documents necessary to give effect to this Agreement.

24.12          Notices under this Agreement must be in writing and sent to the other party’s registered office.

25         Governing Law and Jurisdiction

This Agreement is governed by the law of England and Wales. All disputes under this Agreement shall be subject to the exclusive jurisdiction of the courts of England and Wales.