the following definitions shall apply to these Conditions:
"Client" or "client" : the person or company who agrees to buy products & Services from the Seller.
"Conditions" : the terms and conditions of sale as set out in this document and any special terms and conditions agreed in writing by the parties.
"Effective Date" : the date of signature of these Conditions by the last signing party.
"Intellectual Property Rights" : patents, utility models, inventions, copyright, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets) and all other intellectual property rights (registered or unregistered, including all extensions and renewals thereof).
"Products & Services" : the articles or services which the Client agrees to buy from the Seller.
"Price" : the price for the Products & Services, excluding VAT.
"Quotation" : the quotation document scheduled to these Conditions and as amended by the parties from time to time.
"Seller" or "Star Digital" : Star Digital Marketing Services Ltd of The Long Barn, Sywell Road, Overstone, Northamptonshire, NN6 0AB.
"Specification" : The specification that forms part of the Quotation and which is scheduled to these Conditions setting out the functionality, scope and other features relating to the Products & Services as amended by the parties from time to time.
2.1 These Conditions shall form the basis of the contract between the Seller and the Client in relation to the sale of Products & Services, to the exclusion of all other terms and conditions including the Client's standard conditions of purchase or any other conditions which the client may purport to apply under any purchase order or confirmation of order or any other document.
2.2 All orders for Products & Services shall be deemed to be an offer by the client to purchase Products & Services from the Seller pursuant to these Conditions.
2.3 Acceptance of delivery of the Products & Services shall be deemed to be conclusive evidence of the Client's acceptance of these Conditions.
2.4 These Conditions may not be varied except by the written agreement of a director of Star Digital Marketing Services Ltd.
2.5 These Conditions represent the whole of the agreement between the Seller and the Client. They supersede any other conditions previously issued.
The Price shall be the price quoted on the Quotation. The Price is exclusive of VAT which shall be due at the rate in force on the date of the Seller's invoice.
4. Payment and Interest
4.1 Payment of the Price and VAT shall be due and payable by the client within 30 days of acceptance by the client of the applicable Products & Services set out in the Quotation.
4.2 Interest on overdue invoices shall accrue from the date when payment becomes due calculated on a daily basis until the date of payment at the rate of 12% per annum above the Bank of England base rate from time to time in force. Such interest shall accrue after as well as before any final judgment of a court of competent jurisdiction.
4.3 The Client shall pay all accounts in full and not exercise any rights of set-off or counter-claim against invoices submitted by the Seller.
5. Products & Services and Intellectual Property Rights
5.1 The quantity and description of the Products & Services shall be as set out in the Specification.
5.2 The support ticketing system is accessible 24 hours a day, 7 days a week, and emails from this are automated. Working hours are 9am - 5.30pm, Monday to Friday. Any work undertaken outisde these working hours mus be agreed between the parties.
5.3 All Intellectual Property Rights in the Products & Services developed by Star Digital shall be the property of Star Digital unless expressly agreed between parties. The parties shall do all things and execute all documents necessary to give effect to this clause. The Client acknowledges that the Products & Services may include certin Intellectual Property Rights that are owned or controlled by third parties and which cannot form part part of any Client IP Rights, namely: (i) Open source software; and (ii) certain Intellectual Property Rights that Star Digital has developed other than for the Client and prior to entering into thse Conditions (principally, the "Star Connector Plus" agnostic data integration modules and the Auction Marketer products).
6. Schedule of the Products & Services
6.1 Star Digital shall deliver the Products & Services to the Client to the Specification. The Specification shall allow for reasonable (but not material) variations in design across multiple browser and device applications
6.2 The agreed scope and Specification of the Products & Services to be included in any project is scheduled to these Conditions. Any work that falls outside of this scope wil be deemed chargeable at the prevailing rate for that service. Star Digital shall inform the Client prior to performing any work deemed outside of scope, and will give the Client an accurate prior indication of expected cost overrun.
6.3 Star Digital shall complete and deliver the Products & Services to the Client within a set time frame as outlined in the Quotation scheduled to these Conditions. Where there is a Specification it will define the minimum standard of the Products & Services and Website that Star Digital shall deliver to the Client.
6.4 The Seller undertakes to use all reasonable endeavours to deliver the Products & Services on an agreed delivery date, but does not guarantee to do so.
7. Project Management
Each party shall appoint a project manager who shall: (i) provide professional and prompt liaison with the other party; and (ii) have the necessary authority to commit the relevant party.
8. Development and Acceptance of the Products & Services
8.1 Once Star Digital has completed design and development of the Products & Services in accordance with eahc agreed pahse of the project, Star Digital and the Client shall co-operate to conduct an acceptance test. The procedure set out in this clause shall be repeated in respect of the applicable phase and any further development works agreed by the parties from time to time. The acceptance tests are further detailed in the Schedule to these Conditions.
8.2 The acceptance tests shall test the compliance of the Products & Services with the Specification. The parties shall carry out a thorough inspection of the Products & Services as part of each acceptance test.
8.3 Acceptance of the Products & Services shall occur when those Products & Services have passed the acceptance tests. The Client shall confirm its acceptance of those Products & Services in writing to Star Digital as soon as reasonably practicable following acceptance of those Products & Services.
8.4 If the Products & Services do not pass an acceptance test, the failures that cause relevant acceptance test to be failed ( "Defects" ) shall be drawn up and documented by Star Digital and presented to the Client for discussion as to how to best rectify such Defects. Star Digital shall remedy and Defects promptly in order to ensure that the Products & Services which are not in accordance with these Conditions.
9. Third Party Products
Where Star Digital supplies any third party products or services as part of the Products & Services, it shall do so in accordance with the relevant third party's standard licence terms.
10. Alteration of Products & Services
10.1 Star Digital may charge additional reasonable fees for acrrying out work pursuant to material changes that are additional to the scope set out in the Quotation.
10.2 Where the parties agree to materially alter the scope of the Products & Services that Star Digital is to provide under the Quotation, Star Digital shall notify the Client as to whether it requires an alteration to the original deadline to provide such Products & Services. The parties shall then attempt to negotiate (acting reasonably and in good faith) an alteration to the original deadline with a view to minimising the impact on the progress of the provision of the Products & Services and the Website, Where the parties cannot agree an alteration to the original deadline, Star Digital shall use reasonable endeavours to meet the original deadline.
11.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform these Conditions.
11.2 Star Digital warrants that it shall provide the Products & Services and the Website to the Client using reasonable care and skill and in accordance with generally recognised commercial practices and standards.
11.3 Star Digital warrants that the operation of any completed Website will be uninterrupted, free from material errors and otherwise materialy in accordance with the Specification for a period of 1 month from Client acceptance of the completed Website. If the Website does not so perform, Star Digital shall, for no additional charge, promptly ensure that the Website complies the Specification.
12. Limitations on Liability
12.1 Star Digital cannot be held responsible for any third party influence on the development of mobile applications that is beyond its reasonable control, usch as the Apple store or Android store rejecting an application. Star Digital shall use all reasonable endeavours to ensure that applications are compatible and fit for purpose prior to build but does not take responsibility for third party policy changes and review procedures that are beyond its reasonable control.
12.2 Where Star Digital recommends a web hosting partner it is important to note that the partner terms and conditions apply to the Client, and Star Digital does not underwrite or guarantee any provision of service or data integrity. Star Digital shall provide on request a back to back SLA on hosting that mirrors that of the hosting provider. Clients are therefore advised to check the terms of the hosting partner's SLA.
12.3 Star Digital is not liable for: (i) any malicious code injection on Client websites, or (ii) issues arising from PCI complicance breaches,in either case for which it (or on of its employees, directors or officers) is not responsible. Any server based patching for PCI or application stability is outside of the scope of any support agreements and is chargeable. Penetration test fixes are chargeable and Star Digital offers no warranty following a web server penetration test.
12.4 Star Digital does not preform PCI spanning and Clients must use a trusted third party such as Trustwave or McAfee and provide reports to Star Digital where changes/patches are required. Star Digital shall be entitled to charge the Client an additional sum for provision of such changes/patches.
13. Data Protection
Star Digital warrants that, to the extent it processes any personal data (as defined in the UK Data Protection Act 1998 or any successor legislation) on behalf of the Client, it shall: (i) act only on instructions from the Client; (ii) it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and (iii) only transfer the Client's personal data to countries outside the European Economic Area that ensure an adequate level of protection for the rights of the data subject after written authorisation by the Client which may be granted subject to such conditions as the Client deems necessary.
These Conditions shall commence on the Effective Date and shall (subject to earlier termination in accordance with these Conditions) terminate automatically on final acceptance of the Products & Services and comepleted Website by the Client and payment of all outstanding sums.
Without affecting any right or remedy available to it, either party may terminate these Conditions with immediate effect by giving written notice to the other party if: (i) the other party commits a material breach of these Conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within 14 days after being notified to do so; or (ii) the other party becomes insolvent.
16. Consequences of Termination
Upon expiry or termination of these Conditions: (i) all licences granted by Star Digital to the Client under these Conditions shall terminate immediately; and (ii) Star Digital shall promptly return all materials relating to the Products & Services to the Client, and shall provide if requested by the Client an electronic copy of the Webiste, including all content thereof. Star Digital shall provide assistance as reasonably requested by the Client to transition the provision of the Products & Services to another service provider, subject to payment of Star Digital's expenses where reasonably incurred.
17. Force Majeure
Neither party shall be in breach of these Conditions nor liable for any delay in performing, or failure to perform, any of its obligations under these Conditions if such failuer result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 30 days, the party not affected may terminate these Conditions by giving seven days' written notice to the affected party.
18.1 In these Conditions, "Confidential Information" means all information whether technical or commercial (including the Specification and all drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or during discussions between the parties), where the information ought reasonably to be condisered confidetnail given the nature of the information of a similiar nature, being at least a reasonable degree of care.
18.2 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own Confidential Information of a smiliar nature, being at least a reasonable degree of care.
18.3 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisors, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
18.4 The obligations set out in this clause shall not apply to Confidential Information which the receiving party can demonstrate: (i) isor has become publicly known other than through breach of this clause; (ii) was in the possession of the receiving party prior to disclosure by the other party; (iii) was receivied by the receiving party from an independent third party who has full right of disclosure; or (iv) was required to be disclosed by governmental authority or court or tribunal of competent jurdisdiction, provided by governmental authority or court or tribunal of competent jurisdiction, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
Clients agree that all media releases, public announcements (including converations with third parties) and public disclosures by Star Digital relating to these Conditions or their subject matter, including promotional or marketing material, shall be allowable as long as they have been agreed with Client and approved by the Client prior to release, announcement or disclosure. Star Digital may use its Client trade marks, trade names, business names or other indicia on the Website without the prior written consent of the Client.
The Client may not assign or transfer any of its rights or obligations under these Conditions without the prior written consent of Star Digital
21. Entire Agreement
These Conditions (and any schedules to them that have been agreed by the parties) constitute the entire agreement between the parties and supercedes and extinguishes all previous agreements between them, whether written or oral, relating to its subject matter.
22. Third Party Rights
A person who is not a party to these Conditions shall not have any rights under the Contracts(Rights of Third Parties) Act 1999 (The "Act") to enforce any term of these Conditions. Thi does not affect any right or remedy of a third party which exists, or is available, apart from the Act.
No varation of these Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under these Conditions 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 usch right or remedy shall prevent or restrict the further exercise of that or any other right ot remedy.
If any provision or part-provision of these Conditions is or becomes invalid, illegal or uneforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification or deletion of a provision or part-provision under this clause shall not affect the vailidity and enforceability of the rest of these Conditions.
26. Governing Law and Jurisdiction
These Conditions and any disputes or claims arising out of or in connection with it ot its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exlusive jurisdiction to setle any dispute or claim arising out of or in connection with these Conditions or its subject matter or formation (including non-contractual disputes or claims).
27. Additional Terms
27.1 The Client shall provide Star Digital with everything it reasonably requires to complete the project as and when and in the format Star Digital reasonably requires it.
27.2 The Client shall review Star Digital's work, provide feedback and provide any approvals it decides to give in a timely manner.
27.3 Star Digital test its work in current versions of major desktop browsers including those made by Apple (Safari), Google (Chrome), Microsoft (Internet Explorer), Mozilla Firefox and Opera. Star Digital does not support older versions (pre-IE11) and Star Digital shall not be obligated to test in other older browsers unless the Client specifies otherwise. If the Client requires an enchanced design for an older browser, it shall make a written request to Star Digital, who shall provide a seperate estimate for the work upon receipt of that request.
27.4 Star Digital acknowledges that testing popular small-scrreen devices is essential in ensuring that a person's experience of a design is appropriate to the capabilities in ensuring that a person's experience of a design is appropriate to the capabilities of the device they're using. Star Digital tests its work in: (i) iOS: Safari and/or (ii) Android 4.1: Google Chrome, Firefox. Star Digital does not currently test Opera Mini, Blackberry OS or Blackberry QNX, Opera Mobile, Symbian or other mobile browsers. If the Client requires Star Digital to test using these, the Client shall make a written request to Star Digital, who shall provide a separate estimate for the work upon recipt of that request.
27.5 If Star Digital has quoted for responsive web design, it shall test that the design changes to a good standard and provides a good user experience across mobile devices using the applications noted above.
27.6 Star Digital does not provide transfer or support for Magento builds on third party servers under any circumstances. The Client is responsible for checking Star Digital's server recommendations in the Quotation provided when commissioning a Magento e-commerce build.
You have the authority to enter into this contract on behalf of yourself, your company or your organisation. You’ll give us with everything we need to complete the project as and when and in the format we need it. You’ll review our work, provide feedback and approval in a timely manner too. Deadlines work two ways, so you’ll also be bound by dates we set together. You also agree to stick to the payment schedule set out at in this contract.
We have the experience and ability to do everything we’ve agreed with you and we’ll do it all in a professional and timely manner. We’ll endeavour to meet every deadline that’s set and on top of that we’ll maintain the confidentiality of everything you give us.
This contract is a legal document under exclusive jurisdiction of the United Kingdom courts.