These Terms and Conditions apply to the provision to the Client of The Forrester Corporation Limited (thefc) of the Services as detailed in the Quotation or Proposal.
1.1 In these Terms and Conditions, unless the context otherwise requires, the following words shall have the following meanings:
"Agreement" means these Terms and Conditions together with the Order Form and the Proposal;
"Client Materials" means all Client documents, data, graphics, copy and other materials (including without limita-tion web based materials) that are:
(a) Required in order for thefc to provide the Services; and/or
(b) Provided to thefc for incorporation into any Deliverables or otherwise in connection with the provision of the Services; and/or
(c) Incorporated into any Deliverables by the Client and/or uploaded by or on behalf of the Client onto thefc (or its third party internet service provider's) servers;
"Deliverables" means all materials (including without limitation web based materials) developed by thefc for the Client as part of the Services but excluding any Client Materials;
"Development Services" means website, software and/or database design and development services;
"Fees" means the fees specified in the Proposal;
"Foreground Intellectual Property Rights" means all Intellectual Property Rights arising in the course of provision of the Services;
"Hosting Services" means website hosting services;
"Intellectual Property Rights" means any patents, registered trade marks and registered designs (including ap-plications and the right to apply for any of the same in any country in the world), any other rights in inventions, discoveries and improvements, unregistered trade marks, trade names or get-ups, copyright, moral rights, de-sign rights, database rights, rights in domain names, know-how and any other industrial or intellectual property right subsisting in any country in the world;
"Order Form" means the form on which the Client orders the Services;
"Proposal" means the proposal or quotation for Services referred to in the Order Form; and
"Services" means the services set out in the Proposal.
"thefc" means The Forrester Corporation.
1.2. In the event of any conflict between these Terms and Conditions, the Proposal and/or the Order Form, the order of precedence shall be as follows:
(b) These Terms and Conditions
(c) Order Form.
2.1. thefc shall provide the Services in accordance with these Terms and Conditions using reasonable skill and care and shall use reasonable endeavors to meet any relevant dates or project plans set out in the Proposal.
2.2. Nothing in this Agreement shall impose on thefc any duty of exclusivity to the Client or any restriction on thefc performing services of any kind at any time for any third party.
2.3. thefc may from time to time effect changes in the specification of the Services in order to comply with any law or regulation or which do not have any materially adverse effect on the quality of the Service provided to the Client.
2.4. Where thefc obtains as part of the Services third party software, upgrades or service patches for installation and use by the Client, the Client shall enter into direct licences for such software with the relevant third party provider, and thefc shall have no liability in respect of the same.
2.5. thefc may, at its sole discretion and at no charge to the Client, update, modify or amend the contents or coding behind any website designed, developed and/or hosted by thefc as part of the Services in order to main-tain or improve technical quality or performance or consistency in light of usage experience or browser or soft-ware enhancements, insofar as such background modifications will be minor or imperceptible to the Client and other users.
2.6. No representation or warranty of any kind is made by thefc regarding the overall performance of any web-site designed, developed and/or hosted by thefc as part of the Services, as regards the number of hits or page impressions recorded, or placement or ranking on any search engine or internet directory.
2.7. The Client shall have been deemed to have accepted all Deliverables upon delivery.
2.8. Unless otherwise stated in the Proposal, the Client agrees (i) to the incorporation of a credit to thefc in the Deliverables, and (ii) to the incorporation of a hyperlink to the homepage of thefc's website within the Client's website:
(a) where such website is designed and/or developed by thefc, for as long as such website is active; and/or
(b) where such website is hosted by thefc, for at least as long as such hosting continues.
2.9. The Client will not engineer-out or remove the link referred to in clause 2.8 from within its website.
2.10. The Client agrees that the Deliverables may be referred to by thefc and that its website may be linked to or referred to by thefc in a portfolio of work either online or offline.
2.11. Errors and omissions - It is the Client's responsibility to check proofs carefully for accuracy in all respects, including but not limited to prices, spelling, dimensions and distances. thefc is not liable for errors or omissions. The Client's signature or that of his authorized representative is required on all proofs or artwork prior to release for printing or other implementation.
2.12. Revisions and alterations - New work requested by the Client and performed by thefc after a pro-posal/estimate has been approved is considered a revision or alteration. If the job changes to an extent that substantially alters the specifications described in the original estimate, we will submit a revised pro-posal/estimate to you, and both parties must agree to a revised additional fee before further work proceeds. It is normal practice for contact reports to be issued by thefc's staff of meetings between the Client and thefc. If the subject matter of a contact report is not questioned by the Client within three working days of its receipt, it will be taken to be a correct record of the meeting to which it refers. Author's alterations and other copy changes requested after layouts or mechanicals are completed are billed at our standard hourly rates.
2.13. Over runs and under runs (Printed Material) - Some printers' terms enable them to deliver over or under the quantity ordered and to charge accordingly. In thefc cases the Client will accept over runs or under runs that do not exceed +/- 10% of the quantity ordered and thefc will bill for the actual quantity delivered within this tol-erance.
2.14. Placement of advertising - At your request, we will purchase media space on your behalf which will be billed to you at current rates plus the standard agency commission. The Company cannot be held liable for ad-vertising that does not appear on a particular time/date or issue or in a particular position or break.
2.15. Property and suppliers performance - The Company will take all reasonable precautions to safeguard property entrusted to us. In the absence of negligence on our part, however, we are not responsible for loss, destruction or damage or unauthorized use by others of such property. We will use our best efforts to ensure quality and timely delivery of all services. Although we may use our best efforts to guard against any loss arising from the failure of our suppliers, media, or others to perform in accordance with their commitments, thefc is not responsible for failure on their part. We cannot in any way be held responsible for quality, price, performance or delivery of materials made or supplied by third parties where the work has been placed directly by the Client or his agents.
3. Client Materials
3.1. Where the provision of the Services depends upon certain Client Materials:
(a) the Client shall provide thefc with such Client Materials promptly in accordance with the Proposal or oth-erwise upon request; and
(b) the Client warrants that working the Client Materials shall be accurate and suitable for their intended pur-pose and, in the event of any breach of this warranty, thefc shall be entitled to charge the Client at its stan-dard rates for any additional work incurred by thefc as a result of such breach.
3.2. The Client warrants that the Client Materials, including without limitation material intended to be hosted as part of the Hosting Services or incorporated into any website or design as part of the Development Services, shall not:
(a) contain any material which shall or may disrupt the provision of services by thefc to third parties or net-work performance in general;
(b) contain any virus, worm, trojan horse or similar element;
(c) be offensive, defamatory, obscene, abusive, menacing, indecent or otherwise contrary to public violate, breach or infringe the rights of any third party anywhere in the world (including without limitation any Intellec-tual Property Rights) decency and morality; or
(d) comprise any material the display, transmission or use of which on the internet shall not otherwise be un-lawful.
3.3. It is the Client's responsibility to retain a back up copy of all Client Materials. thefc shall use its reasonable endeavours to ensure that no Client Materials (including without limitation any data and/or confidential informa-tion included in any Client Materials) are damaged, lost or disclosed or made available to any third party other than in the performance of the Services. However, the Client acknowledges and agrees that thefc shall have no liability for any loss or corruption of or damage to, or any unauthorised disclosure or access to, any Client Mate-rial (including without limitation any data and/or confidential information included in any Client Materials) however caused.
4. Development Services
4.1 The provisions of this clause 4 shall apply only where the Services include Development Services.
4.2. Where indicated in the Proposal, thefc will provide to the Client up to three design proofs of the relevant Deliverables. The third design proof will be deemed to be the final design proof and is submitted for the Client's sign-off. thefc shall be entitled to charge the Client at its standard rates from time to time for any amendments or additions requested by the Client further to the final design proof.
4.3. thefc shall have no liability in respect of any errors in any design proofs or the Deliverables resulting from the final design proof where such errors were not corrected by the Client at the time of its review of the relevant proofs.
4.4. Where the Proposal indicates or the Client otherwise requests that thefc undertake the relevant Develop-ment Services without the preparation of proofs then the Client acknowledges and agrees that thefc shall:
(a) be entitled to produce the Deliverables without submission or reference to the Client; and
(b) have no liability in respect of any aspect of the text layout or style of the Deliverables that does not accord with the Client's wishes and shall have no obligation to check whether the Deliverables are likely to do so.
4.5. thefc shall not be obliged to accept any amendments to the scope of the Development Services or the final design proof or to vary or add to any Work, where such amendments fall outside the scope of the Proposal. thefc shall be entitled to charge the Client for all additional work and costs incurred in connection with any al-terations to the scope of the Development Services or the final design proof following sign off pursuant to clause 4.2 (other than corrections of any error by thefc) at thefc's standard rates from time to time.
4.6. Any preliminary work undertaken by thefc prior to provision of design proofs at the Client's request which is not included within the Proposal shall be paid for by the Client at thefc's standard rates from time to time.
5. Hosting Services
5.1. The provisions of this clause 5 shall apply only where the Services include Hosting Services.
5.2. Unless the Proposal states otherwise, the minimum agreed period for the Hosting Services is one year. The Client may thereafter cancel the service by serving 30 days' written notice prior to the yearly renewal date and the Client shall incur no additional Fees in respect of the Hosting Services. The Client may cancel the Hosting Service at any time upon written notice to thefc provided that the Client shall not be entitled to any refund of (and shall remain liable for) the Fees for the Hosting Services for the year in question.
5.3. The Client shall provide the material to be stored as part of the Hosting Service via the mechanism and in the form specified by thefc.
5.4. Any user name and password provided to the Client by thefc shall be kept confidential and may not be disclosed to third parties, and may only be used in relation to the provision of the Services. The Client will pay to thefc any additional charges incurred by thefc arising from any unauthorised use of a user name and/or pass-word.
5.5. thefc and/or its representative have the right, but have no obligation, to inspect the content of material stored as part of the Hosting Service to ensure the Client's compliance with this Agreement.
5.6. The Client shall not use the servers on which the Hosting Service is provided to send unsolicited or spam emails to any Internet user.
5.7. The Client acknowledges that thefc engages a third party internet services provider to provide the Hosting Service. thefc shall use its reasonable endeavours to ensure that the web pages stored as part of the Hosting Service are available via the internet on a 24/7 basis. However, owing to the nature of the Internet, thefc cannot and does not warrant that the hosted material will be continuously available. thefc accepts no liability whatso-ever for any loss or damage caused by interruptions in the Hosting Service availability and/or for any action or inaction by the third party internet service provider.
5.8. The Client shall not do any act (including without limitation monopolising available resources) which shall or may disrupt the provision of services by thefc to third parties or network performance in general.
5.9. In the event that the Client breaches any provision of this clause 5, thefc shall be entitled to immediately suspend or terminate the Hosting Services and the Client shall not be entitled to any refund of Fees.
5.10 thefc operates a seperate 'Hosting Terms of Service' policy which should be read in conjunction with clause 5
5.11 thefc operates a seperate 'Acceptable Use' policy which should be read in conjunction with clause 5
6. Title and risk
6.1. All tangible Deliverables supplied by thefc to the Client shall be at the Client's risk from the date of delivery to the Client or elsewhere at the Client's direction.
6.2. Title to all Deliverables remains with thefc until payment of all relevant Fees has been received in full.
6.3. The Client acknowledges that it is in possession of all tangible Deliverables as a fiduciary until such time as ownership passes to the Client and, until such time, thefc may for the purpose of recovery of tangible Deliver-ables enter any premises upon which they are stored or where they are reasonably thought to be stored and may repossess the same.
6.4. If any such Deliverables are damaged in transit to the Client's premises, the Client must notify the carrier and must not sign that the goods have been received in good condition. Subject to compliance with the forego-ing, thefc will rectify or redo (whichever is the more suitable) the relevant Deliverables as soon as is reasonably practicable.
6.5. Rights of ownership (Graphic Design & Printed Material) - Once a project has been delivered by us and is fully paid for by the Client, thefc will assign the reproduction rights of the design for the use(s) described in the proposal. According to copyright law, the rights to all design and artwork, including but not limited to photogra-phy, music and or illustration created by independent photographers, artists or illustrators retained by thefc, or purchased from a stock agency on behalf of the Client, remain with the individual designer, artist, photographer or illustrator. Unless a purchase of "All Rights" (a Buyout) is negotiated on behalf of thefc, you may not use or reproduce the design, work or the property therein for a purpose other than the one(s) originally stipulated. If you wish to use the design we have created and/or the images within it for another purpose or project, including a reprint or exhibition, you must contact us to arrange the transfer of rights and the payment of any additional fees before proceeding. (cont.)
Master artwork including roughs, visuals, mock-ups and presentations is the property of thefc and will not be released or copied for the Client or any third party to use in any way whatsoever without prior written agreement by a director of thefc. We reserve the right to photograph and/or distribute or publish for our firm's promotional and marketing needs any work we create for you, including roughs, visuals, mock-ups and presentations, as samples for our portfolio, newsletter, brochures, presentations and website and for entry for awards. We will endeavour to store files on computer disks for a period of 6 months beyond the delivery of a job. Thereupon, we reserve the right to discard them without notice.
7. Prices and Payment
7.1. The Client shall pay all Fees in accordance with the terms set out in the Proposal. Unless stated otherwise in the Proposal, all Fees are payable within 14 days of the date of thefc's invoice.
7.2. thefc may increase any Fees relating to the Hosting Services on any anniversary of the date of commence-ment of the Hosting Services upon not less than 30 days' written notice to the Client. The Client shall be entitled to terminate this Agreement in respect of the Hosting Services immediately upon written notice to thefc following receipt of such notification.
7.3. The Fees and all other sums payable under this Agreement are exclusive of VAT and/or any other applica-ble sales taxes. the Client shall be responsible for paying any taxes that arise under this Agreement other than any tax based on thefc's income.
7.4. If the Client fails to pay the Fees or any other sums due under this Agreement by the relevant due date, thefc reserves the right to:
(a) charge interest at a daily rate on all sums outstanding until payment in full is received whether before or after judgment at a rate of 4% above the base rate of Barclays Bank plc from time to time. thefc reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and/or
(b) suspend the Services until payment is received in full, and the Client shall reimburse thefc for all reason-able costs and expenses incurred by thefc arising from such suspension.
7.5. Payment of the Fees and all other sums payable under this Agreement shall be made in full without any set off or deduction whatsoever.
7.6. In the event of any termination or suspension of the Services prior to completion or delivery of the Deliver-ables, in addition to the other rights and remedies of thefc under this Agreement, thefc shall be entitled to im-mediate payment for all work in progress.
7.7. In the event that the completion of any Services is in thefc's opinion unreasonably delayed due to the Cli-ent's failure to provide any Client Materials necessary to complete the Services then, notwithstanding the pay-ment terms in the Proposal, thefc shall be entitled to immediately charge the Client for the value of the work in progress, and to suspend the provision of the Services until such time as payment is made for such work in progress in full.
7.8. For the avoidance of doubt, the Client shall be liable for the full costs of the Services whether or not following execution of this Agreement the Client determines that the Services are no longer required.
7.9. For projects or orders in excess of £1000 (exc. VAT) we will raise a 20% deposit invoice and reserve the option to put in place additional stage payments as required and agreed with the Client.
8. Intellectual Property Rights
8.1. All Foreground Intellectual Property Rights shall be owned by thefc.
8.2. thefc grants to the Client a non-exclusive royalty-free licence of such Intellectual Property Rights as is nec-essary to enable the Client to use the Deliverables for the purpose set out in the Proposal but for no other pur-pose.
8.3. thefc warrants that the use of the Foreground Intellectual Property Rights by the Client in accordance with the licence granted in clause 8.2 shall not infringe the Intellectual Property Rights of any third party, and thefc shall indemnify the Client from and against any liability incurred by the Client as a result of a breach of the war-ranty in this clause 8.3.
8.4. The Client warrants that it owns or is licensed to use all Intellectual Property Rights in the Client Materials. All such Intellectual Property Rights shall remain the property of the Client and/or its licensors provided that the Client grants thefc a non-exclusive, royalty-free licence to use the same for the purposes of providing the Serv-ices.
8.5. The Client warrants that thefc's use of the Client Materials for the purposes of the provision of the Services shall not infringe the Intellectual Property Rights of any third party and the Client agrees to indemnify thefc against any liability arising from the use of said material.
8.6 Where thefc uses stock photography, unless otherwise stated in the proposal, it will be through iStock International inc. Material will be licensed under the iStock standard license terms and for the explicit use of the proposal.
9. Indemnity and limitation of liability
9.1. The Client shall indemnify and shall keep indemnified thefc from and against any claims, costs, losses, damages, expenses (including legal fees) and liabilities arising out of or in connection to any breach by the Client of any of the terms of this Agreement including, without limitation, any warranties given by the Client.
9.2. Except as expressly set out in this Agreement, all warranties, undertakings, conditions and terms, express or implied, whether by common law, statute, custom, trade usage, course of dealings or otherwise (including without limitation as to quality, performance or fitness for purpose, in respect of the provision of the Services are hereby excluded to the fullest extent permitted by law.
9.3. Nothing in this Agreement shall exclude or restrict the liability of either party to the other for death or per-sonal injury resulting from the negligent act of one party or for liability for any fraudulent misrepresentation by a party to this Agreement.
9.4. Subject to clauses 9.3 and 9.5, the liability of thefc to the Client in contract, tort or otherwise arising out of or in connection with this Agreement shall be limited for any one incident or series of incidents to the total Fees paid by the Client in respect of the Services.
9.5. Subject to clause 9.3, in no circumstances shall either party be liable to the other under or in connection with this Agreement whether in contract, tort or otherwise (including negligence) for any indirect, economic or consequential loss whatsoever for any loss of business, loss of contracts, loss of profits, loss of use, any deletion corruption, destruction, loss or removal of data, loss of goodwill or loss of reputation even if such loss was reasonably foreseeable or one party had advised the other of the likelihood of their incurring the same.
9.6. The provisions of this clause 9 shall continue notwithstanding any termination of this Agreement.
10.1. This Agreement may be terminated by either party immediately on written notice if:
(a) the other commits a material or persistent breach of any term of this Agreement; or
(b) an interim order is made, or a voluntary arrangement approved, or if a petition for bankruptcy order is presented or a bankruptcy order is made against the other party or if a receiver or trustee is appointed of the other party's estate or a voluntary arrangement is approved or a notice is served of intention to appoint and administrator or an administrator is appointed by Court order or by any other means, or a receiver or admin-istrative receiver is appointed over any of the other party's assets or undertaking or a resolution or petition to wind up the other party is passed or presented (otherwise than for the purposes of reconstruction or amal-gamation), or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, adminis-trative receiver or administrator or to present a winding up petition or make a winding up order.
10.2. Upon termination of this Agreement for any reason, all amounts then owed to thefc shall immediately be-come due and payable.
10.3. Any termination of this Agreement shall be without prejudice to any other rights or remedies either party may be entitled to under this Agreement or at law.
10.4. thefc may terminate this Agreement at any time subject to repayment of all sums paid by the Client in re-spect of the Services.
11.1. thefc shall not be liable to the Client for any delay in or for failure to perform its obligations under this Agreement, if that delay or failure is caused by circumstances beyond the control of thefc including, without limitation, acts of God, failure of shortage of power supplies, flood, fires, strikes, insurrection, riots, embargoes, failure of a telecommunications or internet service provider, computer virus, worm or trojan horse, denial of serv-ice or other internet based attack, acts or failure of subcontractors or other third parties or regulations of any civil or military authority.
11.2. The Partner shall not be entitled to assign, subcontract or otherwise transfer this Agreement nor any of its rights or obligations under this Agreement. thefc may assign or subcontract any or all of its rights or obligations under this Agreement.
11.3. No variation of this Agreement shall be valid unless it is in writing and signed by an authorised representa-tive of each of the parties.
11.4. Time shall not be of the essence in respect of the provision of the Services.
11.5. thefc is an independent contractor and neither thefc, nor its employees, subcontractors or consultants shall be deemed employees of the Client and nothing in this Agreement shall constitute or imply any joint ven-ture, agency or fiduciary relationship between the parties.
11.6. The failure or delay of thefc to exercise or enforce any right under this Agreement shall not operate as a waiver of that right or preclude the exercise or enforcement of it at any later time. Any waiver by thefc of a breach of any provision of this Agreement will not constitute a waiver of any subsequent breach of the same or any other provision.
11.7. This Agreement constitutes the entire understanding between the parties with respect to their subject matter and supersedes and replaces all prior agreements, negotiations and discussions between the parties relating to it. The Client confirms and acknowledges that it has not been induced to enter into this Agreement by any representation, warranty, or undertaking not expressly incorporated into it. However, nothing in this Agree-ment purports to exclude liability for any fraudulent statement or act.
11.8. The parties agree that they do not intend any term of this Agreement to be enforceable by anyone who is not a party to this Agreement.
11.9. If any provision of this Agreement shall be held to be unlawful, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such provision or part shall to that extent be severed from this Agreement and rendered ineffective as far as possible without modifying or affecting the legality, validity or enforceability of the remaining provisions of this Agreement which will remain in full force and effect.
11.10. Any notice to be given under this Agreement shall be in writing and shall be delivered by hand, sent by first class post or airmail or sent by fax (such notice to be confirmed by letter posted within 12 hours) to the ad-dress of the other party set out in this Agreement (or such other address as may have been notified). Any such notice or other document shall be deemed to have been served: if delivered by hand - at the time of delivery; if sent by post - upon the expiration of 48 hours after posting (or 5 days after posting if sent by airmail); and if sent by fax - at 9:00am on the next business day after the fax was dispatched.
11.11. This Agreement shall be governed by and construed in accordance with English law and each party hereby irrevocably submits to the non-exclusive jurisdiction of the English Courts.