(Updated June 2011)
All services provided by Jest Limited (“Jest”) to the Client are subject to the following terms and conditions.
1. Definitions
In this Agreement, unless the context otherwise requires, the following expressions shall have the following meanings:
"Agreement” - these Terms and Conditions, the Proposal and the Project Order;
"Client” - any person, firm or company who has issued a Project Order to Jest;
“Proposal” - the proposal prepared by Jest and presented to the Client for the provision of the Services including any subsequent Requirements Specification;
“Project Order” - the order placed by the Client accepting the Proposal;
“Services” - the services to be delivered by Jest as specified in the Proposal and Project Order including, but not limited to, the development of the Software (where applicable);
"Software” - the product(s) (where stipulated) to be provided by Jest as specified in the Proposal and Project Order.
2. Agreement
By the issuance of a Project Order, the Client acknowledges to have read, understood and accepted these Terms and Conditions and agrees to be legally bound by them. Alternatively, payment of an advance fee or payment online is an acceptance of these Terms and Conditions. A copy of these Terms and Conditions are attached to the Proposal but are also available upon request or via Jest’s website.
In addition to these Terms and Conditions, further obligations of each party are set out in the Proposal and Project Order.
3. Charges
Charges for the Services are set out in the Proposal along with the payment terms. Quotations are valid for a period of 30 days.
Invoices will be provided to the Client by Jest at each stage where a payment is due. Invoices are normally sent via email but the Client may choose to receive hard copy invoices. Payment is due within fourteen days of receipt.
If the Client fails to pay any sum due under this Agreement by the date it became due to Jest, it shall pay interest on the unpaid amount from the due date until payment at the rate of 8% above the Bank of England base rate from time to time. Jest may also, at its discretion, cease delivery of the Services and/or work on the Software where the Client fails to pay any sum due by the date it become due either under this Agreement or any other agreement with Jest.
Hourly and daily rates will be quoted to the Client for any services required outside of the scope of the Proposal, such work to become part of this Agreement on receipt of an order from the Client.
All sums payable under this Agreement are exclusive of VAT which shall be payable where appropriate at the rate prevailing at the relevant tax point.
Payment for services are due by cheque or bank transfer as set out on the invoice. Cheques should be made payable to Jest Limited.
4. User Acceptance Test
Acceptance tests shall be carried out by the Client as per the Proposal. The Acceptance Test shall be completed by the Client within one week from the date indicated by Jest. The Client shall notify Jest in writing that the Software has been accepted by the Client and the date thereof. In case of non-completion by the Client, the Software shall be deemed to be accepted on the expiry of one week from the date indicated by Jest.
5. Deadlines
Jest will provide the Client with an estimated completion date for the delivery of the Services if requested. Jest will endeavour to meet any given deadline, but does not guarantee and is not bound in any way to complete by this date.
6. Default
Cheques returned for insufficient funds will be assessed a return charge of £25 and the Client's account will immediately be considered to be in default until full payment is received.
7. Termination
In case of material breach of any terms and conditions of this Agreement by any Party, this Agreement can be terminated immediately by the other Party by giving written notice to the other party. The rights and obligations arising out of or in relation to this Agreement or payments due to be made or received by either Party prior to the termination of this Agreement shall continue to remain in force notwithstanding the termination of this Agreement.
Jest shall, on the termination of this Agreement due to material breach by the Client, be entitled to take back the Software/Licences.
The Client will be invoiced for all work completed to the date of notice of cancellation.
8. Ownership of Software
Jest shall retain all copyright, patents, knowhow, source codes and other intellectual property rights in the Software. Software developed for an Applications store will be uploaded by Jest with the appropriate details provided by the Client. Where the Software is required by the Client, Jest grants the Client a non-exclusive, non-transferable licence to use the Software. Such licence is conditional upon full payment for the Software being made by the Client to Jest. The licence shall authorise the Client to:
- install the Software on computer systems owned, leased or otherwise controlled by the Client;
- utilise the Software for its internal data-processing purposes; and
- copy the Software only as necessary to exercise the rights granted in this Agreement.
Jest shall, if required by the Client, enter into an agreement with an escrow agent for the deposit of the source code of the Software. The terms of that agreement will be substantially the same as the standard terms issued by such escrow agent. Jest shall notify the escrow agent that the Client is to have the benefit of that agreement and be a licensee under it. The Client shall pay any costs associated with the establishment of the escrow and any renewal costs which occur under the escrow.
The parties agree that the approval processes for Applications stores are unpredictable. Therefore, whilst Jest will comply with relevant published guidelines, it cannot guarantee that Software developed for an Applications store will be approved and/or accepted by such store and does not accept any liability for a delay and/or refusal to approve/accept.
9. Third Party Permissions
The Client is responsible for obtaining permission and/or rights of use for any information, data or files that are owned by a third party (including, but not limited to, obtaining permission and/or rights of use for Jest). The Client agrees to indemnify and hold harmless Jest from any or all claims, losses, demands etc resulting from the Client’s failure to obtain such permissions and/or rights of use.
10. Background Technology
The Client acknowledges that Jest owns or holds a licence to use and sublicence various pre-existing development tools, routines and other programs, data and materials that Jest may include in the Software. This material shall be referred to as "Background Technology." Jest retains all right, title and interest, including, but not limited to, all copyright, patent rights and knowhow rights in the Background Technology. Subject to full payment of the fees due under this Agreement, Jest grants to the Client a non-exclusive, perpetual worldwide licence to use the Background Technology in the Software. However, the Client shall make no other commercial use of the Background Technology without Jest's written consent.
11. Confidentiality
Each Party shall treat as confidential, the Agreement and all information obtained from the other pursuant to the Agreement and shall not divulge such information to any person (except to such party's own employees, sub-contractors and other persons and then only to those employees, sub-contractors and persons who need to know the same) without the other party's prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to the Agreement, which is already in public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause) or which is obvious. Each Party shall ensure that its employees, sub-contractors and other persons are aware of and comply with the provisions of this clause. The foregoing obligations as to confidentiality shall survive any termination of the Agreement.
12. Independent Contractor
Jest is an independent contractor, and neither Jest nor Jest's employees are, or shall be deemed, Client's employees. Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.
13. Force Majeure
In the event that the performance of the obligations under this Agreement by either Party are prevented or hindered in consequence of any act of God or circumstances beyond the control of the Parties, then such performance or obligations shall wholly or partially be suspended during the period and no party shall be liable to other party during such period owing to such circumstances.
14. Entire Agreement
This Agreement contains the Parties entire agreement relating to the subject matter provided for herein and supersedes any and all prior agreements or understandings. No amendment or addition to this Agreement shall be valid unless made in writing and signed by authorised representatives of each Party.
15. Assignment and Subcontracting
Neither Party may assign all or part of the rights and obligations arising under this Agreement, without the other Party’s prior written consent, except that Jest reserves the right to appoint subcontractors to deliver all or part of the Services.
16. Governing Law
This Agreement shall be governed by English Law and subject to the exclusive jurisdiction of the English courts.
17. Warranties
Jest shall provide support for a period of fourteen days from the acceptance date referred to in Clause 4 above without any cost (the “Warranty Period”). After the expiry of the Warranty Period, should the Client require further support, annual maintenance charges (as set by Jest) shall be paid by the Client in advance.
The support entitles the Client to corrections to errors reported in the current release of the Software as and when the same are made available by the Client.
The warranties set forth in this Agreement are the only warranties granted by Jest. Jest disclaims all other warranties express or implied, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose.
18. Liability
Jest shall not be liable for any loss or damage which the Client may suffer by reason of any act, omission, neglect or default (including negligence) in the delivery of the Services or licensing of the Software by Jest, its servants or agents, in a sum which is greater than the total price of the Services.
Jest shall not be liable for any loss of profits and/or loss of production or any indirect or consequential (including economic) loss of any kind which the Client may suffer by reason of any act, omission, neglect or default (including negligence) in the delivery of the Services or licensing of the Software by Jest, its servants or agents.
Nothing in this Agreement shall operate so as to exclude:
a) either party’s non-excludable liability in respect of death or personal injury caused by its negligence or the negligence of its servants or agents;
b) or affect the Client’s statutory rights where goods are sold and the Client is dealing as a consumer within the meaning of the Unfair Contract Terms Act 1977;
c) the application of Section 12 of the Sale of Goods Act 1979; or
d) liability for fraudulent misrepresentation.
19. Severability
In the event that any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired and the Agreement shall not be void for this reason alone. Such invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.
20. Notices
Any notice required to be given hereunder shall be given by sending the same by registered mail, postage prepaid, return receipt requested or by facsimile, to the address stated within the Proposal, or to any subsequent address designated by either Party for the purpose of receiving notices pursuant to this Agreement. All notices shall be deemed to have been validly given on (i) the business day immediately after the date of transmission with confirmed answer back, if transmitted by facsimile; or (ii) the date actually delivered, if transmitted by courier or registered post.
21. Design and Development Credit
A link to Jest’s website and a feedback option to Jest will be included within the Software as a credit for the design and development. If the Client requests that the credit be removed, a fee of 10% of the total project charges (being those charges set out in the Proposal and any additional charges incurred for services required by the Client outside the scope of the Proposal) will be applied.
