These Terms and Conditions are the standard terms of engagement from Red Mirror Ltd (“The Company”), a company Registered in England & Wales, No 05185635, whose registered office is at 9 Station Road, Theale, Reading, RG7 4AA.
1. Definitions and Interpretation
In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
Acceptance means the acceptance or deemed acceptance of the Software by the Customer.
Acceptance Tests means the tests specified in the Specification and/or such other tests as may be agreed in writing between the Customer and the Company for the purposes of confirming that the Software operates according to the functional requirements in the Specification.
Agreement means these Terms and Conditions together with the terms of any applicable Development Proposal and Cost Specification Documents.
Change Request means a documented request for a change to the Specification or Software or Project Plan or other of the Deliverables made by the Customer or by The Company.
Customer means the organisation or person who purchases services and/or products from the Company.
Defect means an error in the Software that causes it to fail to operate substantially in accordance with the relevant Documentation and/or Technical Specification.
Deliverables means the software, documentation and services to be delivered by The Company to the Customer in fulfilment of this Agreement as set out in the Specification.
Development Services means the design and development services to be provided pursuant to these Terms as set out in the Quotation, Scope of Work and/ or Technical Specification.
Documentation means the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms supplied by the Company.
Materials means the content provided to the Company by the Customer from time to time for incorporation in the Application.
Personal Data means data subject to protection under the data protection law in any jurisdiction.
Price means the fixed aggregate price for the provision of the Deliverables as set out in the Specification;
Software means the source programs, compiled object code of the software, scripts and installation programs being developed or customised by The Company for the Customer, as set out in the Specification, including any enhancements and modifications made.
Specification means all or any of the following documents: development proposal, cost specification documents, statement of work, quotation or other similar documents supplied to the Customer describing the services to be provided by Red Mirror.
Writing includes electronic mail, facsimile transmission and comparable means of communication.
2. The Agreement
It is agreed that the terms set out in the Specification and in these Terms & Conditions constitutes the total agreement made between the parties and that no variation or modification of this Agreement shall be effective unless agreed by both parties in writing.
An Agreement between the parties will not be formed (start date) until The Developer sends the Clients confirmation, in writing, that the advance payment has been accepted and the project assigned to the Projects Team.
Any Price provided by The Company may be revised by The Company, subject to the provisions in paragraph 5, in the following circumstances:
If the Customer materially amends the Specification to provide additional development Services not referenced or detailed within the original Specification.
If the scope of work to be undertaken was unclear at the time The Company provide the original Price.
If it is discovered that there was a manifest error when the estimate was prepared.
The Parties agree to do everything necessary to ensure that the terms of this Agreement take effect.
These Terms & Conditions apply to the Agreement to the exclusion of any other terms that the Clients may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Supply of Services
Services specific to this Agreement will be outlined in the Specification that accompanies these terms and conditions.
The Company shall provide the Development Services to the Customer; and perform the Development Services with a reasonable level of skill and care in accordance with a degree of skill, diligence, prudence and foresight which, as at the relevant time, would reasonably be expected from a skilled and experienced software developer seeking in good faith to comply with its contractual obligations.
The Development Services will be performed by employees of the Company. However, The Company reserves the right to sub-Agreement the whole or part of the work. The Company remains responsible for the quality of any work carried out by a third-party engaged by them.
The Company shall use all reasonable endeavours to ensure that the Development Services are provided in accordance with the timetable set out in the Specification, and that a copy of the Software and Documentation is delivered to the Customer in accordance with that timetable.
The Customer acknowledges that a delay in the Customer performing its obligations under this Agreement may result in a delay in the performance of the Development Services; and subject to paragraph 12 the Company will not be liable to the Customer in respect of any failure to meet the Development Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under this Agreement.
On completion of the project the Company will not provide files until full payment has been made.
4. Customers Obligations
The Customer acknowledges that the Company’s ability to provide the Development Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any information and data the Customer provides to the Company. Accordingly, the Customer shall provide the Company with access to, and use of, all information, data and documentation reasonably required by the Company for the performance by the Company of its obligations under this Agreement.
The Customer agrees to provide all branding guidelines before the Project begins. The Customer acknowledges that any changes to the branding requirements after Development Services have begun may incur additional costs.
The Customer agreed to nominate specific stakeholders who will be responsible for Acceptance Testing and sign off at each stage of the Project. Should a stakeholder for a later stage require changes to an earlier stage that has already been signed off the Company will provide a Price and timeframe to make those changes as per paragraph 5 below.
The Customer shall be responsible for the accuracy and completeness of any Materials and Content provided for inclusion in the Deliverables.
The Customer agrees that the Company may put a by-line within the Customer’s software system acknowledging design and development credit. The Customer also agrees that the provision of Development Services may be included in the Company’s portfolio of completed system projects.
The Customer shall comply, as soon as reasonably practicable, with all the Company’s reasonable requests for information or assistance.
Should the Customer, on request or by inaction, put the project on hold for a period of more than one (1) month, they acknowledge that The Company may incur additional costs and will be unable to deliver to the original timeframes. Under these circumstances The Company will provide a new Price and timeframes as per paragraph 5 below.
5. Variations in Project Scope
If either party identifies a requirement for a change to the Specification or to the Software or Project Plan, a Change Request shall be sent to the other party detailing the change requirements. If sent by The Company, the Change Request shall state the effect such a change shall have on the Specification, the Project Plan and the Price. If sent by the Customer, the receipt of the Change Request by The Company shall constitute a request to The Company to state in writing the effect such a change shall have on the Specification, the Project Plan and the Price. The Company shall use all reasonable endeavours to supply the necessary details within two (2) weeks from receipt of the Change Request or such other period as may be agreed.
Where a change to the Price is required, the rates used as the basis for the additional cost for the Change Request shall be the Rates as detailed in the Specification. The parties shall then decide whether or not to implement the change.
If The Company in its sole discretion deems that more than one working hour is required to investigate and estimate a Change Request initiated by the Customer then The Company reserves the right to produce a quotation for the investigation work for the Customer’s approval before commencing investigation work.
The Company shall not implement any changes to the Software specified in a Change Request unless the Change Request has been agreed by both Parties in writing.
If a Change Request is agreed in writing by both Parties, the change shall then be deemed to form part of the Specification, Software, Project Plan and Price for the purpose of the meaning of these terms in the Agreement.
6. Price and Payment
Prices specific to this Agreement will be outlined in the Specification that accompanies these terms and conditions.
Unless otherwise specified in writing, all projects require a 50% advance payment to be made before any Development Services will begin. The remaining 50% is payable on completing of the work, before any files will be released to the Customer.
Additional charges may be applied for travel, accommodation and subsistence depending on the location where the Development Services are to be provided and the Term of this Agreement. All additional charges will be agreed with The Customer in advance.
Any disbursements incurred by The Company during the carrying out of the Development Services on behalf of the Customer will be invoiced separately if not included within the original Price quoted. No disbursements will be incurred without the Customers prior approval.
Invoices are payable immediately upon receipt unless otherwise agreed in writing. The time of payment of the price shall be of the essence of the Agreement.
The Price as stated in the Agreement does not include Value Added Tax (“VAT”). Vat will be charged at the prevailing rate. Our VAT number is GB 861232348.
The Company’s preferred method of payment is by BACS/Faster Payment and bank details are on the Invoice. Credit or Debit Card payment are also acceptable.
The Company reserves the right to withhold the provision of the Software created for the Customer, until payment has been made and received in full.
If payment of the price or any part thereof is not made by the due date, The Company may:
Cancel the Agreement or suspend any further provision of the Development Services to the Customer with immediate effect. Any such period of suspension shall be disregarded for contractual time limits previously agreed for the completion of the Development Services,
Exercise their statutory right to charge interest at 8% above the Bank of England base rate on late business debts under provisions in the Late Payments of Commercial Debts (Interest) Act 1998.
Apply a charge of £10 (to cover administrative expenses and not as a penalty) per reminder for overdue payment submitted to the Customer. The Company shall be entitled to submit such reminders on a weekly basis once the fees have become overdue.
Charge the Customer the costs of recovery of any outstanding amount including legal costs and disbursements.
All Software is provided in SCORM 1.2 compatible files, if applicable. Compatibility with the Customers Learning Management Software is checked before the Project begins but the Company cannot be held liable for any incompatibility issues arising after completion of the development Services. This is between the Customer and their Learning Management Software provider.
Unless otherwise agreed in writing by the Company, the Company warrants that the Software will perform substantially in accordance with the Technical Specification for a period of one month from Acceptance. If the Software does not so perform, the Company shall, for no additional charge, carry out any Development Services necessary in order to ensure that the Software substantially complies with the Technical Specification.
The warranty set out in this paragraph shall not apply to the extent that any failure of the Software to perform substantially in accordance with the Technical Specification is caused by a force majeure event which has the meaning given in paragraph 9, is caused by any act or omission of the Customer, is caused by the Materials or Content approved by the Customer or is caused by a third party (including the Customer’s Learning Management Software provider).
The Company does not warrant or guarantee that it will be able to rectify Defects.
Any unauthorised modifications, use or improper installation of the Software by, or on behalf of, the Customer shall render all the Company’s warranties and obligations under the Agreement null and void.
The Company shall not be obliged to rectify any particular Defect if attempts to rectify such Defect other than normal recovery or diagnostic procedures have been made by the Customer’s personnel or third parties without the permission of the Company.
This Agreement shall continue until completion of the Project unless either party gives to the other not less than seven (7) days prior written notice of termination or unless the Agreement is terminated in accordance with any of the provisions of this paragraph or any other paragraph of this Agreement.
Either party shall be entitled to terminate this Agreement forthwith at any time by written notice to the other party if:
The other party commits a breach of any of the terms of this Agreement (and if the breach is capable of remedy) fails to remedy the breach within 30 days after receipt of notice in writing to do so; or
The other party becomes subject to an administration order; a receiver or administrative receiver or similar is appointed over, or an encumbrancer takes possession of any of the other party’s property or assets; the other party enters into an arrangement or composition with its creditors, ceases or threatens to cease to carry on business, becomes insolvent, or ceases to be able to pay its debts as they fall due.
Upon the termination of this Agreement, the Company shall return to the Customer any materials and documentation and any Confidential Information belonging to the Customer and all copies of the whole or any part thereof or, if requested by the Customer, shall destroy the same and certify in writing to the Customer that it has been destroyed.
9. Events Outside of Our Control (Force Majeure)
The Company shall not be liable for any delay or failure to perform any of their obligations if the delay or failure results from events or circumstances outside their reasonable control. These include, but are not limited to, failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars; and The Company shall be entitled to a reasonable extension of their obligations.
If the delay persists for such time as The Company consider unreasonable, they may, without liability on their part, terminate the Agreement and refund any payments made to date.
If the Customer wishes to cancel the Agreement that is subject to a delay caused by any event outside The Company’s control, they may do so in accordance with the cancellation rights noted paragraph 8.
10. Communication and Contact Details
Red Mirror Ltd are committed to providing their Clients with a high-quality service that is both efficient and effective. If you would like to discuss how their service could be improved or if you are dissatisfied with the service you are receiving, please let them know by contacting firstname.lastname@example.org.
11. Intellectual Property Rights
Except where otherwise agreed and on payment in full of the Price, the Company assigns to the Customer ownership of the Intellectual Property Rights in the Software.
The Customer agrees to obtain all necessary permissions and authorities in respect of the use of all Materials that the Customer supplies to The Company to include in the Deliverables.
The Customer shall be responsible for ensuring that the contents of Materials they have contributed or approved are not in contravention of legislation, decency, marketing rules or any other third-party rights. The Company shall be entitled to reject and delete such material without incurring any liability. In addition, the Company shall be entitled to cancel the Agreement.
The Customer shall indemnify the Company against all damages, losses and expenses suffered or incurred by The Company because of the Materials which the Customer have contributed or approved being in contravention of legislation, decency, marketing rules or any action that any such Materials infringe any Intellectual Property Rights of a third party.
The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described above.
The Company shall indemnify the Customer on demand against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim that the use or possession of the Software infringes the Intellectual Property Rights of any third party subject to such infringement having been deliberately and consciously entered into on the part of the Company.
The Customer shall promptly notify the Company in writing of any allegations of infringement of which it is aware and shall not make any admissions without The Company’s prior written consent;
The Customer, at The Company’s request and expense, shall allow The Company to conduct and/or settle all negotiations and litigation resulting from any such claim subject to The Company taking over such conduct within 10 working days after being notified of the claim and provided that The Company diligently pursues the settlement of any such claim; and
The Customer shall, at the request of The Company, afford all reasonable assistance with such negotiations or litigation, and shall be reimbursed by The Company on demand for all expenses properly incurred in doing so.
If the Customer’s use or possession of the Software or any part of the Software in accordance with this Agreement, is held by a court of competent jurisdiction to constitute an infringement of a third party’s Intellectual Property Rights, then The Company shall promptly and at its own expense:
procure for the Customer the right to continue using and possessing the Software or the infringing part; or
modify or replace the Software (or part thereof) without detracting from the overall performance of the Software, so as to avoid the infringement.
If the remedies set out above are not in The Company’s opinion reasonably available, then the Customer shall return the Software which is the subject of the intellectual property claim and The Company shall refund to the Customer the corresponding portion of the Price, as normally depreciated, whereupon this Agreement shall immediately terminate.
12. Our Liability
Nothing in this Agreement shall exclude or limit either party’s liability for death or personal injury resulting from the negligence of that party or their employees, agents or sub-contractors, for fraudulent misrepresentation or concealment or for any other liability that cannot be in any way excluded or limited at law.
Except as otherwise expressly provided in the Agreement:
The Company’s liability to the Customer in Agreement, tort, negligence or otherwise arising out of or in connection with the Agreement or the performance or observation of its obligations under the Agreement shall be limited in aggregate to the charges paid by the Customer to The Company under the Agreement; and The Company shall not be liable in Agreement, tort, negligence or otherwise arising out of or in connection with this Agreement for any economic losses (including, without limitation, any loss of profits, business, contracts, goodwill, revenue or anticipated savings) or any special, indirect or consequential losses or any destruction of data arising out of or in connection with the Agreement.
This indemnification will survive the termination of this Agreement.
13. Confidentiality and Data Protection
Confidential Information (the “Confidential Information”) refers to any data or information relating to the Customer’s business which would reasonably be considered to be proprietary to them including, but not limited to, Materials, business processes and client information and that is not generally known in their industry and where the release of that Confidential Information could reasonably be expected to cause the Customer harm.
All written and oral information and material disclosed or provided by the Customer to The Company under this agreement is Confidential Information regardless of whether it was provided before or after the date of this agreement or how it was provided to The Company.
On the conclusion or termination of the Agreement both parties shall cease to use all copies of confidential information obtained from the other except in so far as the law requires the information be retained in which event it shall be kept until such period is over and, in any event, kept strictly confidential under the provisions of this clause.
‘Data Protection Legislation’ refers to all applicable privacy and data protection laws including the General Data Protection Regulation ((EU) 2016/679) and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426).
Both parties shall ensure that they, their employees, agents and sub-Contractors shall observe the requirements of all UK Data Protection legislation and any amendments or revisions thereto in the provision and use of the subject matter of the Agreement and personal data processed under it and shall comply with any request made or direction given to the other which is directly due to the requirements of such Legislation.
All Personal data that Company may collect (including, but not limited to, the Clients name and address) will be collected, used and held in accordance with the provisions of UK Data Protection legislation and your rights under that legislation.
For the purposes of this clause, the terms “data controller”, “data processor”, and “processing” bear the respective meanings given them in UK Data Protection legislation.
The Company warrants that, to the extent it processes any Personal Data on behalf of the Customer: it shall act only on instructions from the Customer; and 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.
The Customer acknowledges that the Company will be acting as a data processor rather than as a data controller in respect of all such data processing which the Company carries out under these Terms.
14. Other Important Terms
If any of the provisions of the Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.
The Agreement between the Parties for the sale of Services shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Clients, without the Photographers prior written consent.
No failure or delay by The Company in exercising any of their rights under this Agreement means that they have waived that right, and no waiver by them of a breach of any provision this Agreement means that they will waive any subsequent breach of the same or any other provision.
15. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of the English courts.