STANDARD TERMS AND CONDITIONS
1.1 The following definitions and rules of interpretation apply to this Agreement:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the total fees, expenses and charges payable by the Client to OVG as specified in the Order Form.
Client: the person detailed in the Order Form;
Client Materials: the Information, materials, documents and content provided to OVG by the Client from time to time in order to assist OVG in performing the Services.
Commencement Date: the date set out in the Order Form.
Contract Year: the 12 month period from the Commencement Date and each succeeding 12-month period.
Information: the information which the Client must supply to OVG to enable OVG to carry out the Services.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order Form: the Client’s order for Services in OVG’s standard form.
Products: the products and/or goods set out in the Order Form.
Retail Price Index (or RPI): the Retail Prices Index (as published by the Office of National Statistics) or any official index replacing it.
Services: the services and scope of work to be provided by OVG to the Client as set out in the proposal section of the Order Form.
OVG: OVG Limited (company number 06540492)
Specific Terms: the terms set out at the end of these Standard Terms that apply to the specific Service ordered by the Client as set out in the Order Form.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Headings shall not affect the interpretation of this Agreement.
1.3 A reference to an Agreement or to any other agreement or document referred to in this Agreement is a reference to the Agreement (or other agreement or document) as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.5 A reference to writing or written includes fax and e-mail.
1.6 References to clauses are to the clauses of this Agreement and references to paragraphs are to paragraphs of the Specific Terms.
1.7 A reference to a statute is a reference to it as amended, extended or re-enacted from time to time.
1.8 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.9 Any words following the terms including, include, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 This Agreement governs the overall relationship of the parties in relation to the Services.
2.2 The Client may request that OVG provides other services from time to time. If OVG agrees to provide such other services, the parties will sign a new Order Form which shall form the basis of a new Agreement to become legally binding provided that on the date it is signed, this Agreement has not been terminated.
2.3 Each Order Form shall be signed by the Client and OVG, and (together with the relevant Specific Terms and these Standard Terms) forms a separate contract between the parties.
3.1 The provision of the Services will commence (or be deemed to have commenced) on the Commencement Date and will continue, until terminated:
3.1.1 by either party giving to the other not less than 12 months’ notice in writing, provided that such notice is not given within the first Contract Year other than in accordance with clause 3.2;
3.1.2 in accordance with clause 11; or
3.1.3 where the Order Form relates to the delivery of a Product only, upon the delivery of the Product and receipt of payment in accordance with the Order Form; or
3.1.4 in accordance with the Order Form or Specific Terms.
3.2 Either party may give notice to terminate the Services at the end of the first Contract Year provided such notice is received by the receiving party no less than 3 months before the anniversary of the Commencement Date.
3.3 This agreement shall terminate without notice (save for those provisions that are intended to survive termination) at the same time that the term of the only remaining (or the last effective) Order Form expires or terminates.
3.4 Subject to clause 3.2, termination of an Order Form shall not affect any other Order Form or this Agreement.
4.1 OVG shall use reasonable endeavours to:
4.1.1 provide the Services in accordance with the Order Form in a timely manner in all material respects;
4.1.2 (unless any other warranties are set out in the Specific Terms or agreed between the parties) perform the Services with a reasonable level of care, skill and diligence in accordance with common practice in OVG’s industry, profession or trade;
4.1.3 where possible, provide the Services in accordance with any specific brand guidelines, specification or other document supplied by the Client prior to the relevant Commencement Date, or as set out in clause 6;
4.1.4 use personnel who are suitably skilled, trained and experienced to perform tasks assigned to them, and in sufficient numbers to fulfil its obligations; and
4.1.5 comply with all applicable laws and regulations, including those relating to anti-bribery and anti-corruption.
4.2 Any additional services, not specified in an Order Form may be requested by the Client in accordance with the change control provisions set out in clause 6.
4.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
5.1 The Client shall:
5.1.1 co-operate with OVG (and its sub-contractors and service suppliers) in all matters relating to the Services;
5.1.2 provide access to premises, equipment and data, and other facilities as may reasonably be requested by OVG for the purpose of providing the Services;
5.1.3 provide any Client Material as OVG may request in order to carry out the Services in a timely manner, and keep that information up to date;
5.1.4 deliver, obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services and the use by OVG of any Client Materials.
5.2 If OVG’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, OVG shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
5.3 The Client shall be liable to pay to OVG, on demand, all reasonable costs, charges or losses sustained or incurred by OVG (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under this Agreement, subject to OVG confirming such costs, charges and losses to the Client in writing.
6.1 If either party wishes to change the scope or execution of the Services, it will submit details of the requested change to the other in writing.
6.2 If either party requests a change to the scope or execution of the Services, OVG shall, within a reasonable time, provide a written estimate to the Client of:
6.2.1 the likely time required to implement the change;
6.2.2 any necessary variations to Service Provider’s charges arising from the change; and
6.3.3 any other impact of the change on this Agreement.
6.3 If the Client wishes OVG to proceed with the change, OVG has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services and any other relevant terms of this Agreement to take account of the change, including (as applicable) the entering into of a new Order Form in accordance with clause 2.2). Once the change has been agreed, this Agreement shall be deemed to have been varied in accordance with clause 13.
6.4 To avoid any doubt, if either party wishes to terminate a Service, or reduce its requirements for a Service, it shall serve notice in writing in accordance with clause 3.1.1.
7.1 In consideration for the provision of the Services the Client shall pay to OVG the Charges as varied by clauses 7.2 and 7.4.
7.2 The Charges shall increase annually, on the anniversary of the Commencement Date by the percentage equivalent to the RPI rate published in the September prior to the anniversary of each Contract Year, or 2%, whichever is the greater.
7.3 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Charges to OVG on the due date:
7.3.1 the Client shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount; and
7.3.2 OVG may suspend all Services (and all other services it provides to the Client under any other agreement) until payment has been made in full.
7.4 OVG also reserves the right to increase the Charges in the event that a statutory change to legislation or other compulsory requirement means that further costs must be expended by OVG. Any increases shall be notified to the Client in writing as soon as practicably possible.
7.5 OVG shall invoice the Client and the Client agrees to pay OVG in accordance with the payment terms set out in the Order Form. Unless agreed otherwise in writing by the parties, the Client shall pay each invoice submitted by OVG by monthly direct debit on the first day of the month following the date of the invoice.
7.6 All amounts and fees stated or referred to in this Agreement are exclusive of VAT, which shall be added to OVG’s invoice(s) at the appropriate rate.
7.7 All sums payable to OVG under this Agreement shall become due immediately on its termination. This clause 7.7 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.
7.8 All amounts due under this 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).
7.9 Any additional services requested by the Client, not detailed in the Order Form, will be charged at OVG’s standard rates that apply on the date of delivery of that service (unless a different rate is agreed between the parties in writing).
7.10 The Charges are exclusive of any travel, accommodation or other expenses which shall be paid by the Client and shall be added to OVG’s invoice(s) as and when necessary.
8.1 The Client acknowledges that all of OVG’s Intellectual Property Rights relating to material existing prior to this Agreement or arising or created in connection with the Services belong to OVG or the relevant third-party owners (as the case may be). OVG grants the Client a non-exclusive personal, sub-licensable, royalty free, worldwide license to use, copy and modify the material protected by those Intellectual Property Rights for the Client’s own business purposes only.
8.2 Any Intellectual Property Rights in the Client Materials shall belong to the Client or the relevant third party owner (as the case may be) and the Client shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Materials. The Client grants a worldwide, non-exclusive, royalty free, sub-licensable irrevocable licence to copy, use and modify the Client Materials for the purpose of carrying out its obligations in this Agreement.
8.3 The Client warrants, represents and undertakes that:
8.3.1 any Client Materials provided to Service Provider are owned by Client; or
8.3.2 it has received the necessary consents or permissions to use the Client Materials in accordance with this Agreement and any Order Form from the applicable owner(s);
8.3.3 the Client Materials do not include any material that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, or blasphemous.
8.4 The Client shall indemnify OVG against all damages, losses and expenses arising as a result of any action or claim that the Client Materials breach the warranties, representations or undertakings set out in clause 8.3.
8.5 If OVG processes any personal data on the Client’s behalf when performing its obligations under this Agreement, the parties record their intention that the Client shall be the data controller and OVG shall be a data processor and in any such case:
8.5.1 the Client acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Client is located in order to carry out OVG’s obligations under this Agreement;
8.5.2 the Client shall ensure that it is entitled to transfer the relevant personal data to OVG so that OVG may lawfully use, process and transfer the personal data in accordance with this Agreement on the Client’s behalf;
8.5.3 the Client shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
8.5.4 OVG shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Client from time to time; and
8.5.5 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
9.1 Each party undertakes that it shall not at any time (during the term of this Agreement or afterwards) disclose to any person any confidential information concerning the activities, affairs, customers, clients or suppliers of the other party, except as permitted by clause 9.2. For the purpose of this clause 9, confidential information means information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, clients, customers, products, affairs and finances of the parties for the time being confidential to the parties and trade secrets including, without limitation, technical data and know-how relating to the business of the parties or their suppliers, clients, customers, agents, distributors, shareholders or management, whether or not such information (if in anything other than oral form) is marked confidential.
9.2 Each party may disclose the other party’s confidential information:
9.2.1 to its suppliers, employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall ensure that its suppliers, employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 9; and
9.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Agreement.
10.1 Nothing in this Agreement limits or excludes OVG’s liability for:
10.1.1 death or personal injury caused by its negligence;
10.1.2 fraud or fraudulent misrepresentation; or
10.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
10.2 Subject to clause 10.1, OVG shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
10.2.1 loss of profits;
10.2.2 loss of sales or business;
10.2.3 loss of agreements or contracts;
10.2.4 loss of anticipated savings;
10.2.5 loss of or damage to goodwill;
10.2.6 loss of use or corruption of software, data or information; or
10.2.7 any indirect or consequential loss.
10.3 Subject to clause 10.1 and clause 10.2, in respect of all claims (connected or unconnected) in any Contract Year, OVG’s total liability to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the equivalent of the total Charges paid by the Client in that period.
11.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
11.1.1 the other party fails to pay any amount due under this Agreement (or any other agreement between the parties) on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
11.1.2 the other party commits a material breach of any other term of this Agreement (or any other agreement between the parties) 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;
11.1.3 the other party repeatedly breaches any of the terms of this Agreement (or any other agreement between the parties) in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or
11.1.4 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts; or goes into administration or liquidation either compulsorily or voluntarily (save for the purposes of solvent reconstruction or amalgamation); or the other party (being an individual) is the subject of a bankruptcy petition or order; of if a receiver or administrative receiver is appointed in respect of the whole or any part of its assets; or if either party makes an assignment for the benefit of or composition with its creditors generally; or if its ceases to trade; or threatens to do any of the aforementioned things; or if any analogous events occur with respect to either party in any jurisdiction to which it is subject.
11.2 On termination or expiry of this Agreement:
11.2.1 the Client shall immediately pay to OVG all of OVG’s outstanding unpaid invoices and interest and, for Services for which no invoice has been submitted, OVG shall submit an invoice, which shall be payable by the Client immediately on receipt;
11.2.2 all rights and licenses granted to the Client under this Agreement shall cease;
11.2.3 OVG shall the Client shall return the Products
11.2.4 OVG may destroy or otherwise dispose of any of the Client Materials in its possession unless OVG receives, no later than ten Business Days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the Client Materials. OVG shall use reasonable endeavours to deliver a copy of the Client Materials to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by OVG in returning or disposing of Client Materials;
11.2.5 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, 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;
11.2.6 clauses which expressly or by implication survive termination shall continue in full force and effect.
11.3 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
12.1 If there is an inconsistency between any of these Standard Terms and those set out in an Order Form, the provisions in the Order Form shall prevail. If there is more than one Order Form for the same type of Services, the terms of the latest Order Form shall prevail.
13.1 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.1 A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.
14.2 The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
14.3 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, 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 to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
14.4 If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.5 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
14.6 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 this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
14.7 Nothing in this clause shall limit or exclude any liability for fraud.
14.8 The Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without prior written consent of OVG.
14.9 OVG may at any time assign, transfer, mortgage, charge subcontract and deal in any other manner with any or all of its rights and obligations under this Agreement.
14.10 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
14.11 No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
14.12 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this Agreement by giving 1 month’s written notice to the affected party.
15.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or by pre-paid recorded first-class post or other next working day recorded delivery service at its registered office (if a company) or its principal place of business (in any other case).
15.2 Any notice shall be deemed to have been received:
15.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
15.2.2 if sent by pre-paid recorded first-class post or other next working day recorded delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
15.3 This clause 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.
15.4 For the purposes of this clause, “writing” shall not include e-mail.
16.1 This agreement and any dispute or claim arising out of or in connection with it or 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.
16.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
SPECIFIC TERMS: SOFTWARE LICENSE
17.1 The following definitions apply in these Specific Terms:
Authorised User Limit: the maximum number of authorised user licences purchased by the Client as set out in the proposal section of the Order Form;
Documentation: the documents provided by OVG for the Software, in either printed text or machine-readable form;
Licence: the Software licence granted by OVG to the Client as set out in the Proposal;
Permitted Use: the use set out in the Proposal;
Software: the software as detailed in the Order Form;
Third-Party Licences: all licences relating to any Third-Party Software;
Third-Party Software: those third party software products supplied to the Client by OVG.
17.2 Definitions in these Specific Terms have the same meaning as in the Standard Terms unless otherwise stated.
18.1 Subject to compliance by the Client of the terms of the Licence, OVG grants the Client a non-exclusive, non-transferable licence to use the Software and the Documentation in the UK subject to the restrictions below.
18.2 The Client may install and only use the Software for the Permitted Use.
18.3 Where the Proposal specifies that use is limited to one computer, provided it is used on only one computer at any one time, the Client may transfer the Software from one computer to another.
18.4 The Client may:
18.4.1 receive and use any free supplementary software code or update of the Software incorporating “patches” and corrections of errors as may be provided by OVG from time to time; and
18.4.2 use any Documentation in support of the Permitted Use.
19.1 Except as expressly set out in the Licence, the Proposal or as permitted by any local law, the Client undertakes:
19.1.1 not to copy the Software or Documentation except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security;
19.1.2 not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;
19.1.3 not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
19.1.4 not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by the Client during such activities:
19.1.5 to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
19.1.6 to supervise and control use of the Software and ensure that the Software is used by the Client, its employees and representatives in accordance with the terms of this Licence and the Proposal;
19.1.7 to include our copyright notice on all entire and partial copies of the Software in any form;
19.1.8 not to provide, or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person other than the Client’s employees without prior written consent from us.
19.2 The Customer shall:
19.2.1 ensure that the number of persons using the Software does not exceed the Authorised User Limit;
19.2.2 ensure that the Software is installed on designated equipment only;
19.3 notify the Supplier as soon as it becomes aware of any unauthorised use of the Software by any person.
20.1 OVG shall provide the Third-Party Software to the Client under the Third-Party Licences, copies of which shall be provided to the Client, and the Client agrees to be bound by such licence terms.
20.2 The Client shall comply with the Third-Party Licences and shall indemnify and hold OVG harmless against any loss of damage that it may suffer or incur as a result of the Client’s breach of such terms.
21.1 OVG warrants that:
21.1.1 if applicable, the CD-ROM on which the Software is stored and distributed is (at the time it is supplied) free from defects in design, material and workmanship under normal use;
21.1.2 the Software will, when properly used and on an operating system for which it was designed, perform substantially in accordance with the functions described in the Documentation; and
21.1.3 that the Documentation correctly describes the operation of the Software in all material respects,for a period of 90 days from the date of installation of the Software (Warranty Period). If a defect in a CD-ROM containing the software occurs during the Warranty Period, OVG will replace it free of charge if the Client returns the faulty CD-ROM.
21.2 If, within the Warranty Period, the Client notifies OVG in writing of any defect or fault in the Software as a result of which it fails to perform substantially in accordance with the Documentation, OVG will, at its sole option, either repair or replace the Software, provided that the Client makes available all the Information that may be necessary to help OVG to remedy the defect or fault, including sufficient information to enable it to recreate the defect or fault.
21.3 The warranty does not apply:
21.3.1 if the defect or fault in the Software results from the Client having amended the Software; or
21.3.2 if the defect or fault in the Software results from the Client having used the Software in contravention of the terms of the Licence.
21.4 The Client acknowledges that the Software has not been developed to meet its individual requirements, and that it is the Client’s responsibility to ensure that the facilities and functions of the Software as described in the Documentation meets its requirements.
21.5 The Client acknowledges that it has no right to have access to the Software in source code form or in unlocked coding or with comments.
SPECIFIC TERMS: PAY PER CLICK
22.1 The following definitions apply in these Specific Terms:
Designated Search Engine: the search engine for which OVG shall perform the Services as set out in as set out in the proposal section of the Order Form;
PPC Campaign: a pay-per-click advertising campaign set up and managed by OVG for and on behalf of the Client in the course of providing the Services;
PPC Proposal: a document detailing the Client’s proposed PPC Campaign(s) and, where relevant, other information pertaining to the Services;
PPC Setup: the setting up of the PPC Campaign(s);
Services: the pay-per-click advertising management services to be provided by OVG as set out in as set out in the proposal section of the Order Form.
22.2 Definitions in these Specific Terms have the same meaning as in the Standard Terms unless otherwise stated.
23.1 As soon as reasonably possible after receipt of the Required Information from the Client, OVG shall conduct keyword research which shall include, but not necessarily be limited to, an examination of the Website, online research and the use of other suitable methods and tools.
23.2 No later than 4 weeks after receipt of the Required Information, OVG shall present to the Client a PPC Proposal which shall include details of the keywords and campaigns recommended by OVG. Amendments to the PPC Proposal shall be a matter of agreement between the parties acting reasonably.
23.3 As soon as reasonably practicable, following approval by the parties of an agreed PPC Proposal, OVG shall set up the agreed PPC Campaign(s) on the Designated Search Engine(s).
23.4 The Client acknowledges and agrees that:
23.4.1 OVG shall provide the PPC Setup and the Services based on the Information provided by the Client;
23.4.2 OVG cannot control search engines and cannot provide any guarantee of success;
23.4.3 OVG cannot guarantee that the Designated Search Engine(s) will not change their policies or functionality in such a way that will have a detrimental effect on the effectiveness of the PPC Campaign(s). OVG shall use reasonable endeavours to counteract any detrimental effects resulting from any such changes; and
23.4.4 the effectiveness of the PPC Campaign(s) will be determined in part by the budget made available by the Client from time to time. Failure by the Client to make the required budget(s) available may have a negative effect on the related PPC Campaign(s).
23.5 OVG accepts no responsibility for any detrimental effect on the effectiveness of the PPC Campaign(s) which results from any activity of the Client or any third party including, but not limited to, alterations to the Website.
24.1 The Client shall deliver, obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services and the use of any materials provided by the Client in all cases before the date on which the Services are to start.
SPECIFIC TERMS: SEARCH ENGINE OPTIMISATION
25.1 The following definitions apply in these Specific Terms:
SEO Pages: the web pages of the Website developed by OVG containing content, links, tagging and other search engine optimisation techniques in order to increase the ranking and prominence of a website (and/or its web pages) in the result pages of search engines;
Services: the search engine optimisation services to be provided by OVG as set out in the proposal section of the Order Form.
25.2 Definitions in these Specific Terms have the same meaning as in the Standard Terms unless otherwise stated.
26.1 The Client acknowledges and agrees that OVG:
26.1.1 does not guarantee first position or consistent top ten positions for any particular keyword, phrase or search term as it is solely at the discretion of the search engines themselves to list a Website; and
26.1.2 has no control over the policies of search engines with respect to the type of websites and/or content that they accept or the way in which websites are ranked either now or in the future. As a result search engines may stop accepting submissions from OVG for an indefinite period of time with or without notice or cease to list a Website at its discretion. If a Website does not reappear within thirty days of it ceasing to be listed then OVG will offer to re-optimise the applicable Website based on the current policies of the relevant search engine at a cost to be agreed between the parties and Service Provider shall not be liable to Client for any such actions of search engines.
26.2 OVG is not responsible for changes made to the Website by the Client or any third party that adversely affect the search engine rankings of the Website.
26.3 Service Provider shall promptly report to the Client any material issues with the performance of the Services. Upon the reasonable request of the Client, and subject to an agreement on costs between the parties, OVG shall use reasonable endeavours to correct any such material issues with the performance of the Services.
27.1 OVG shall include in the SEO Pages only Client Materials and any other content that it has developed for the Services.
28.1 Solely for the purposes of OVG providing the Services, the Client agrees to provide the following:
21.1.1 administrative or back-end access to the Website for analysis of its content and structure;
21.1.2 permission for Service Provider to make changes to the Website for the purpose of optimisation;
21.2.3 permission for Service Provider to communicate directly with any applicable third parties connected with the Website (for example, Client’s web designer) in order to provide the Services;
21.2.4 access to existing traffic statistics for the Website in order for analysis and tracking purposes; and
21.2.5 where the Website is lacking in textual content, Client will provide additional text content in electronic format for the purpose of creating additional or richer web pages.
28.2 The Client shall inform OVG of any changes to its website that may affect OVG’s ability to perform the Services, including, but not limited to, the deviation, alteration or addition of a URL address, URL redirect or the content of the Website.
SPECIFIC TERMS: WEBSITE DESIGN
29.1 The following definitions apply in these Specific Terms:
Acceptance: the acceptance or deemed acceptance of the Website by the Client;
Acceptance Tests: the tests to be carried out on the Website in order to confirm that the Website conforms with the Website Specification in all material respects;
Services: website design and development services to be provided by OVG as set out in the proposal section of the Order Form;
Third-Party Licences: all licences relating to any Third Party Software;
Third-Party Software: those third party software products used by OVG in order to deliver the Services in accordance with the Website Specification;
Visitor: a visitor to the Website;
Website Specification: the website specification as set out in the proposal section of the Order Form.
29.2 Definitions in these Specific Terms have the same meaning as in the Standard Terms unless otherwise stated.
30.1 OVG warrants that the Website will perform in all material respects in accordance with the Website Specification for a period of three months from Acceptance. If the Website does not so perform, OVG shall, for no additional charge, carry out any necessary work in order to ensure that the Website materially complies with the Website Specification.
30.2 The warranty set out in paragraph 30.1 shall not apply to the extent that any failure of the Website to perform substantially in accordance with the Website Specification is caused by any Client Materials.
30.3 OVG shall provide the Third-Party Software to the Client under the Third-Party Licences, copies of which shall be provided to the Client, and the Client agrees to be bound by such licence terms.
31.1 After OVG has completed the design and development of the Website, OVG shall run the Acceptance Tests. Acceptance of the Website shall occur when the Website has passed the Acceptance Tests. OVG shall notify the Client when the tests have been passed and provide the results of the Acceptance Tests to the Client in writing.
31.2 If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Client, or by one of the Client’s sub-contractors or agents for whom OVG has no responsibility (Non-Service Provider Defect), the Website shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect. The Supplier shall provide assistance reasonably requested by the Client in remedying any Non-Supplier Defect by supplying additional services or products. The Client shall pay OVG in full for all such additional services and products at OVG’s then current fees and prices.
31.3 Acceptance of the Website shall be deemed to have taken place upon the occurrence of any of the following events:
31.3.1 the Client uses any part of the Website for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
31.3.2 the Client unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which OVG is ready to commence running such Acceptance Tests or retests.
32.1 The Client shall comply with the Third-Party Licences and shall indemnify and hold OVG harmless against any loss of damage that it may suffer or incur as a result of the Client’s breach of such terms.
32.2 OVG may treat the Client’s breach of any Third-Party Licence as a breach of the Agreement.
33.1 The Client acknowledges that OVG has no control over any content placed on the Website by Visitors and does not purport to monitor the content of the Website.
33.2 The Client shall indemnify OVG against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.
33.3 OVG may include the statement “Designed by OVG Limited” on the homepage of the Website.
SPECIFIC TERMS: WEB HOSTING
34.1 The following definitions apply in these Specific Terms:
Host: the third party host chosen by OVG which holds a copy of the Website on its server and makes the Website available to users over the internet on behalf of the Client;
Hosting Specification: the specification provided to OVG by the Host (a copy of which may be requested by the Client) from time to time setting out the hosting terms and conditions;
Services: procurement of the Host by OVG to provide the Website hosting and related services to the Client in accordance with the Hosting Specification;
Visitor: a visitor to the Website.
34.2 Definitions in these Specific Terms have the same meaning as in the Standard Terms unless otherwise stated.
35.1.1 does not warrant that the Services will be uninterrupted or error-free (and the Client acknowledges that the Services may be interrupted by planned or unplanned maintenance);
35.1.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
35.2 OVG for itself, its officers, employees, contractors and agents expressly excludes all responsibility and liability for loss of any kind which may be occasioned by the action or omission of the Host its officers, employees, contractors and agents.
35.3 The Client acknowledges and agrees that it shall only be entitled to such warranty or other benefits as the Host sets out in the Hosting Specification.
36.1 OVG and/or the Host shall (on the Client’s request) update the Website with Client Materials, but no more than once in any month during the term of this Agreement.
36.2 OVG shall procure that the Host shall grant the Client access to any server used in connection with the running of the Website in order to update the Client Material.
36.3 The Client acknowledges that OVG has no control over any content placed on the Website by Visitors and does not purport to monitor the content of the Website. OVG reserves the right to remove content from the Website where it reasonably suspects such content is inappropriate.
36.4 The Client shall indemnify OVG against all damages, losses and expenses arising as a result of any action or claim that the Client Materials or any other material posted to, or linked to, the Website constitutes inappropriate content.
36.5 OVG may include the statement “Powered by [the Host]” on the homepage of the Website.
36.6 The Client shall comply with the Hosting Specification and shall indemnify and hold OVG harmless against any loss of damage that it may suffer or incur as a result of the Client’s breach of such terms.
36.7 OVG may treat the Client’s breach of the Hosting Specification as a breach of the Agreement.
SPECIFIC TERMS: SOFTWARE AND APP DEVELOPMENT
37.1 The following definitions apply in these Specific Terms:
Acceptance: the acceptance or deemed acceptance of the New Software by the Client;
Acceptance Tests: the tests to be carried out on the New Software in order to confirm that the New Software conforms with the Technical Specification in all material respects;
New Software: the software program(s), applications, manuals and other documentation to be developed or customised by OVG for the Client, details of which are set out in the Technical Specification, including any enhancements and modifications made;
Open-Source Software: any software licensed under any form of open-source licence meeting the Open Source Initiative’s Open Source Definition (set out at www.opensource.org) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at www.gnu.org), or anything similar, included or used in, or in the development of, the New Software, or with which the New Software is compiled or to which it is linked;
Services: the software development services to be provided by OVG as set out in the proposal section of the Order Form;
Technical Specification: the specification for the New Software set out in the proposal section of the Order Form;
Third-Party Licences: all licences relating to any Third Party Software;
Third-Party Software: the software programs, including any modified software or updates provided to the Client by OVG, proprietary to third parties.
37.2 Definitions in these Specific Terms have the same meaning as in the Standard Terms unless otherwise stated.
38.1 OVG agrees to use reasonable endeavours to develop the New Software to the Technical Specification.
38.2 OVG shall provide the Third-Party Software to the Client under the Third-Party Licences, copies of which shall be provided to the Client, and the Client agrees to be bound by such licence terms.
39.1 Before delivering the New Software (or any part of it) OVG shall:
39.1.1 run the Acceptance Tests. Acceptance of the New Software shall occur when the New Software has passed the Acceptance Tests. OVG shall notify the Client when the tests have been passed and provide the results of the Acceptance Tests to the Client in writing; and
39.1.2 use an up-to-date virus checker on the New Software to as far as practicable check that it is free from all viruses and other contaminants including but not limited to any codes or instructions that may be or will be used to access, modify, delete or damage any data files or other computer programs used by the Client.
39.2 Acceptance of the New Software shall occur when the New Software has passed the Acceptance Tests. OVG shall notify the Client when the tests have been passed and provide the results of the Acceptance Tests to the Client in writing.
39.3 If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Client, or by one of the Client’s sub-contractors or agents for whom OVG has no responsibility (Non-Service Provider Defect), the New Software shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect. The Supplier shall provide assistance reasonably requested by the Client in remedying any Non-Supplier Defect by supplying additional services or products. The Client shall pay OVG in full for all such additional services and products at OVG’s then current fees and prices.
39.4 Acceptance of the New Software shall be deemed to have taken place upon the occurrence of any of the following events:
39.4.1 the Client uses any part of the New Software for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
39.4.2 the Client unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which OVG is ready to commence running such Acceptance Tests or retests.
39.5 The Client shall comply with the Third-Party Licences and shall indemnify and hold OVG harmless against any loss of damage that it may suffer or incur as a result of the Client’s breach of such terms.
39.6 OVG may treat the Client’s breach of any Third-Party Licence as a breach of the Agreement.
SPECIFIC TERMS: SUPPORT & MAINTENANCE SERVICES
40.1 The following definitions apply in these Specific Terms:
Maintenance Release: a release of the Supported Software which corrects faults, adds functionality or otherwise amends or upgrades the Supported Software, but which does not constitute a New Version;
Modification: any Maintenance Release or New Version which is acquired by the Client;
New Version: any new version of the Supported Software which from time to time is publicly marketed and offered for purchase by OVG in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product;
Services: the software support and maintenance services to be provided by OVG as set out in the proposal section of the Order Form.
Supported Software: the software set out in the proposal section of the Order Form.
40.2 Definitions in these Specific Terms have the same meaning as in the Standard Terms unless otherwise stated.
41.1 The Supported Software is:
41.1.1 The Supported Software;
41.1.2 any Modification which is acquired by the Client (whether under this Agreement or any other agreement between OVG and the Client) and which accordingly becomes part of the Supported Software; and
41.1.3 any other software which OVG and Client agree should be Supported Software for the purposes of this Agreement.
41.2 In relation to Maintenance Releases:
41.2.1 OVG shall from time to time make Maintenance Releases available to the Client without charge; and
41.2.2 if the Client fails to acquire and install a Maintenance Release within one month of OVG’s notifying the Client that such Maintenance Release is available for installation, OVG may terminate the provision of the Services set out in these Specific Terms by giving one month’s written notice to the Client.
41.3 In relation to New Versions, if OVG releases a New Version and the Client decides not to acquire and install such New Version within 12 months’ notice of such New Version, OVG may terminate the provision of the Services set out in these Specific Terms by giving one month’s written notice to the Client or agree a reduced level of maintenance and support services with the Client.
41.4 In relation to New Versions:
41.4.1 if OVG releases a New Version, the Client shall, within seven days of delivery, test whether the New Version operates without any impairment of functionality or facilities relative to the previous version (Acceptance Testing). If the Acceptance Testing fails, the Client may reject the New Version by written notice to OVG within seven days of delivery of the New Version.
41.4.2 If the New Version is rejected, that decision shall not give rise to any right to terminate this Agreement, nor shall it result in any adverse effect on the Services or the performance of OVG’s obligations under this Agreement.
42.1 OVG shall have no obligation to provide the Services where faults arise from:
42.1.1 misuse, incorrect use of or damage to the Supported Software from whatever cause (other than any act or omission by OVG), including failure or fluctuation of electrical power;
42.1.2 failure to maintain the necessary environmental conditions for use of the Supported Software;
42.1.3 use of the Supported Software in combination with any equipment or software not provided by OVG or not designated by OVG for use with any Modification forming part of the Supported Software, or any fault in any such equipment or software;
42.1.4 relocation or installation of the Supported Software by any person other than OVG or a person acting under OVG’s instructions;
42.1.5 any breach of the Client’s obligations under this agreement howsoever arising or having the Supported Software maintained by a third party;
42.1.6 any Modification not authorised by OVG; or
42.1.7 operator error.
43.1 The Client shall provide OVG, and all persons duly authorised by OVG with full, safe and uninterrupted access including remote access to the Client’s premises, systems, facilities and the Supported Software as may reasonably be required for the purpose of performing the Services, such access, except in the case of emergency or agreed out-of-hours downtime, to be within the Standard Support Hours. Where the Services are to be performed at any of the Client’s premises, the Client shall provide adequate working space and office facilities (including telephone) for use by OVG and all persons duly authorised by OVG and take reasonable care to ensure their health and safety.
43.2 The Client shall:
43.2.1 report faults promptly to OVG; and
43.2.2 keep full backup copies of all of its data.