PLEASE NOTE, BY INSTRUCTING CUMULUS DIGITAL LTD TO CONDUCT ANY WORK ON YOUR BEHALF OR TO PROVIDE ANY SERVICES TO YOU, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
YOUR ATTENTION IS SPECIFICALLY DRAWN TO CLAUSE 17 OF THESE TERMS WHICH CONTAINS A LIMITATION OF LIABILITY CLAUSE.
1. INTERPRETATION
1.1: Definitions.
In these Conditions, the following definitions apply:
“Business Day” a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
“Charges” the charges payable by the Customer for the supply of the Services in accordance with clause 13;
“Commencement Date” has the meaning set out in clause 2.2;
“Conditions” these terms and conditions as amended from time to time in accordance with clause 22.7;
“Contract” the contract between Cumulus Digital Ltd and the Customer for the supply of Services in accordance with these Conditions;
“Customer” the person or firm who purchases Services from Cumulus Digital Ltd;
“Customer Materials” all documents, information and materials provided by the Customer to Cumulus Digital Ltd relating to the Services, including website content and the Hosted Website;
“Deliverables” the deliverables set out in the Specification produced by Cumulus Digital Ltd for the Customer;
“Development Services” the website design and development services as more particularly described in clause 5;
“Development Website” the website to be developed by Cumulus Digital Ltd as set out in the Specification;
“Domain Name Services” the domain name registration and renewal services as more particularly described in clause 7;
“Hosting Services” the web hosting services as more particularly described in clause 8;
“Hosted Website” the websites to be hosted by Cumulus Digital Ltd as set out in the Specification;
“Cumulus Digital Ltd” Cumulus Digital Ltd registered in England and Wales with company number 09893216, whose registered office is at 2 Burwood Road, Hersham, United Kingdom, KT12 4AG;
“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” the Customer’s order for Services as set out in the Customer’s purchase order form, the Customer’s written or electronic acceptance of a quotation by Cumulus Digital Ltd, or overleaf, as the case may be;
“Services” the services (including the Deliverables, Development Services, Hosting Services and Internet Marketing Services), supplied by Cumulus Digital Ltd to the Customer as set out in the Specification;
“Internet Marketing Services” the search engine optimisation services, paid advertising including pay per click, keyword advertising management and social media account management as more particularly described in clause 9;
“Specification” the description or specification of the Services provided in writing or electronically by Cumulus Digital Ltd to the Customer;
“Supplementary Services” any services supplied by Cumulus Digital Ltd to the Customer other than Development Services, Hosting Services and Internet Marketing Services;
“the Data Protection Legislation” means all applicable laws and regulations relating to the processing of personal data and privacy including the Data Protection Act 2018, the General Data Protection Regulation 2016 as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”), the Privacy and Electronic Communications Regulations 2003 and any and all replacement, subsequent, implementing or additional legislation as amended from time to time;
“Visitor” a visitor to a Website; and
“Website” the Development Website, Hosted Website and/or any website in respect of which Internet Marketing Services are provided by Cumulus Digital Ltd (as appropriate).
1.2: Construction. In these Conditions, the following rules apply:
1.2.1: a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2: a reference to a party includes its permitted assigns;
1.2.3: a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted.
A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4: any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5: a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1: The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2: The Order shall only be deemed to be accepted when Cumulus Digital Ltd issues written or electronic acceptance of the Order or commences work pursuant to the Order. The Contract shall come into existence upon the earlier of: (i) Cumulus Digital Ltd’s written or electronic acceptance; or (ii) Cumulus Digital Ltd commencing work pursuant to the Order (“Commencement Date”).
2.3: The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Cumulus Digital Ltd which is not set out in the Contract.
2.4: Any proposals, samples, drawings, descriptive matter or advertising issued by Cumulus Digital Ltd, and any descriptions or illustrations contained in Cumulus Digital Ltd’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5: These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6: Any quotation given by Cumulus Digital Ltd shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. SUPPLY OF SERVICES
3.1: Cumulus Digital Ltd shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2: Cumulus Digital Ltd shall use reasonable endeavours to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3: Cumulus Digital Ltd shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Cumulus Digital Ltd shall notify the Customer in any such event.
3.4: Cumulus Digital Ltd warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5: Where the Services include regular updates to the Website, such updates do not include a full redesign or rebrand. Where Cumulus Digital Ltd reasonably determines that any update requested by the Customer constitutes a full redesign or rebrand or otherwise falls outside of the Specification, any such redesign, rebrand or additional work shall be subject to a separate Specification and the payment by the Customer of additional Charges.
4. CUSTOMER’S OBLIGATIONS
4.1: The Customer shall:
4.1.1: ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
4.1.2: co-operate with Cumulus Digital Ltd in all matters relating to the Services;
4.1.3: provide Cumulus Digital Ltd, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Cumulus Digital Ltd;
4.1.4: provide Cumulus Digital Ltd with such information and materials as Cumulus Digital Ltd may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects; and
4.1.5: comply with the Service specific obligations set out in clauses 5, 7, 8 and 9.
4.2: If Cumulus Digital Ltd’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
4.2.1: Cumulus Digital Ltd shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Cumulus Digital Ltd’s performance of any of its obligations;
4.2.2: Cumulus Digital Ltd shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Cumulus Digital Ltd’s failure or delay to perform any of its obligations as set out in this clause 4.2;
4.2.3: the Customer shall reimburse Cumulus Digital Ltd on written demand for any costs or losses sustained or incurred by Cumulus Digital Ltd arising directly or indirectly from the Customer Default; and
4.2.4: Cumulus Digital Ltd shall have the right to increase any fixed price Charges in accordance with clause 13.6.
4.3: The Customer accepts that it is responsible for dealing with and responding appropriately to any complaints of whatever nature made by any Visitor and Cumulus Digital Ltd shall have no responsibility or liability, for any such complaints made.
5. DEVELOPMENT SERVICES
5.1: The Customer acknowledges that, if Development Services are included in the Services:
5.1.1: Cumulus Digital Ltd’s ability to provide the Development Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any information and data the Customer provides to Cumulus Digital Ltd. Any delay by the Customer will result in a delay in Cumulus Digital Ltd’s ability to provide the Services;
5.1.2: Cumulus Digital Ltd shall develop the Development Website to work in the then current versions of Microsoft Edge, Google Chrome and Mozilla Firefox. If the Customer requires the Development Website to work in conjunction with any other specific browser (or any older version of the above listed browsers) this must be agreed in the Specification and may be subject to additional charges;
5.1.3: the Development Website (including the software for the Development Website and any third party software or services incorporated into the Development Website) will become obsolete and the Customer will therefore need to update or change the Development Website in order to take account of such updates or obsolescence. Any changes requested by the Customer and subsequently made by Cumulus Digital Ltd pursuant to such request will be made in accordance with these Conditions and will be subject to additional charges;
5.1.4: Unless the Customer specifies any particular means of providing any requested functionality within the Development Website Cumulus Digital Ltd will provide the requested functionality, in accordance with the agreed Specification, in such manner as it in its sole discretion deems most appropriate.
5.2: The Customer shall be responsible for the accuracy and completeness of the Customer Materials on the Development Website in accordance with clause 6.
5.3: In the course of providing the Development Services, Cumulus Digital Ltd shall provide to the Customer a final test version of the Development Website (“Test Site”) for the Customer to review and check compliance with the Specification. The Customer acknowledges that it is the Customer’s responsibility to check for any errors or omissions, and to ensure that the Development Website complies with the Specification.
5.4: Subject to clause 5.5, if the Customer provides Cumulus Digital Ltd with written notice of any failure of the Development Website to comply with the Specification within 7 days of being provided with access to the Test Site or within 7 days of the defect first becoming discoverable, Cumulus Digital Ltd shall remedy such defect without further charge to the Customer.
5.5: Cumulus Digital Ltd shall not be liable to remedy any failure of the Development Website to comply with the Specification if:
5.5.1: the defect arises as a result of the Customer’s instructions or use of the Customer Materials;
5.5.2: the Customer alters the Development Website without the written consent of Cumulus Digital Ltd; or
5.5.3: the Development Website differs from the Specification as a result of changes made to ensure it complies with applicable statutory or regulatory standards; and
5.5.4: the Development Website fails to operate correctly on any specific browser that is: (i) due to the Development Website being designed to work with a browser set out in the Specification; or (ii) not either listed in clause 5.1.2 or the Specification.
5.6: Acceptance of the Development Website shall be deemed to have taken place upon the occurrence of any of the following events:
5.6.1: the Customer fails to notify Cumulus Digital Ltd of any errors in the Development Website or any failure to comply with the Specification within 7 days of being provided with access to the Test Site; or
5.6.2: the Customer instructs Cumulus Digital Ltd to make the Development Website available as a live site.
5.7: If the Customer fails to notify Cumulus Digital Ltd of any errors in accordance with clause 5.4 above (and acceptance is deemed to have taken place pursuant to clause 5.6.1), any notification by the Customer to Cumulus Digital Ltd to remedy such defects after this 7day period will be subject to further charge to the Customer.
5.8: Cumulus Digital Ltd may include the statement “Designed by Cumulus Digital Ltd” on the home page of the Site in a form to be agreed.
6. WEBSITES
6.1: The Customer shall ensure that the Customer Materials, and the use of the same, does not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”).
6.2: The Customer acknowledges that Cumulus Digital Ltd has no control over any content placed on the Website by Visitors and does not purport to monitor the content of a Website. Cumulus Digital Ltd reserves the right to remove content from a Website where it reasonably suspects such content is Inappropriate Content. Cumulus Digital Ltd shall notify the Customer promptly if it becomes aware of any allegation that any content on the Website may be Inappropriate Content.
6.3: The Customer shall not use the Website directly or indirectly:
6.3.1: in any way that breaches any applicable local, national or international law or regulation;
6.3.2: in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
6.3.3: for the purpose of harming or attempting to harm minors in any way;
6.3.4: to send, knowingly receive, upload, download, use or re-use any Inappropriate Content;
6.3.5: to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); or
6.3.6: to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
6.4: The Customer shall indemnify Cumulus Digital Ltd against all damages, losses and expenses arising as a result of:
6.4.1: any action or claim that any Customer Materials constitute Inappropriate Content; and
6.4.2: any breach of clause 6.3.
6.5: Cumulus Digital Ltd reserves the right to disclose the Customer’s identity and contact address to a third party in the event that it receives notice which gives rise to a reasonable suspicion that: (i) any Customer Material constitutes Inappropriate Content from such third party; (ii) or the Website is being used in breach of clause 6.3.
7. DOMAIN NAME SERVICES
7.1: Where included within the Services, the Domain Name Services are limited to:
7.1.1: forwarding an application for registration or renewal to the relevant authority;
7.1.2: providing reasonable administration services in relation to such application for registration/renewal; and
7.1.3: notifying the result of the application for registration/renewal to the Customer within a reasonable period following receipt of any applicable correspondence from the relevant authority.
7.2: With respect to registration and renewal of domains:
7.2.1: Cumulus Digital Ltd will use its reasonable endeavours to register or renew a domain, but it will not be obliged to accept any request to register or renew, or continue to process any registration or renewal of a domain, where such a domain has not been capable of registration or renewal;
7.2.2: subject to Cumulus Digital Ltd holding an up to date email address, Cumulus Digital Ltd will use reasonable endeavours to notify the Customer of any domain renewal dates;
7.2.3: Cumulus Digital Ltd makes no representations or warranties (expressed or implied) of any kind that a domain is available for registration or to the likelihood of a registration or renewal being successful;
7.2.4: the Customer acknowledges that the registration and renewal of any domain name is subject to any registration requirements of the appropriate registry;
7.2.5: the Customer acknowledges that a renewal may be for any period specified by the appropriate registry and may not always be a 2 year renewal period;
7.2.6: the Customer acknowledges that it is the Customer’s responsibility to provide Cumulus Digital Ltd with the correct domain that the Customer requires given that it is not possible to make any changes following the submission of an application for registration; and
7.2.7: the Customer acknowledges that it is the Customer’s responsibility to:
7.2.7.1: instruct Cumulus Digital Ltd to register or renew a domain name; and
7.2.7.2: check if the relevant domain has been successfully registered or renewed by contacting the appropriate authority.
7.3: The Customer undertakes and warrants that the registration and/or renewal of any domain name and the manner in which it is to be directly or indirectly used:
7.3.1: will not infringe any third party rights;
7.3.2: is not being made in bad faith or could be considered to be an abusive registration under the relevant registration authority’s dispute policies and procedures; and
7.3.3: will at no time whatsoever be used for any unlawful purpose.
7.4: Cumulus Digital Ltd accepts no liability for:
7.4.1: the loss of registration of any domain that has failed to be renewed due to an invalid email address being provided to us, late instructions being received, late payments received or technical faults which are beyond Cumulus Digital Ltd’s control; or
7.4.2: any errors or omissions in a domain name that arise as a result of the Customer’s failure to provide correct details or correct any errors.
8. HOSTING SERVICES
8.1: Subject to clauses 8.2 to 8.4(inclusive), where the Services include Hosting Services, the Hosting Services are limited to the hosting of the Hosted Website on a shared system (being a combination of hardware, software and networking that comprise an IT system) that is maintained for many customers, and the provision of a 24-hour contact service to which the Customer should report any total unavailability of the Hosted Website, but shall expressly exclude:
8.1.1: Cumulus Digital Ltd keeping the Hosted Website patched and secure; and
8.1.2: Cumulus Digital Ltd making further code changes for security purposes.
The Customer acknowledges that the 24-hour contact service is available for reporting total loss of access to the Hosted Website only (for example, arising from hard drive collapse) but is not available for the reporting unavailability of parts of the Hosted Website (for example, arising from script errors).
8.2: Where the Customer pays for Hosting Services on an annual basis, in the event the Customer terminates the Contract either entirely or in respect of the Hosting Services during any applicable year, any amount pre-paid in respect of Hosting Services is non-refundable.
8.3: Cumulus Digital Ltd shall provide the Hosting Services subject to Cumulus Digital Ltd receiving the Customer Materials that it requires in order to provide the Hosting Services.
8.4: Cumulus Digital Ltd will use its reasonable endeavours to ensure that access to the Hosted Website is available at an uptime level of 95% in each year, but such uptime availability level does not include unavailability or inoperability that is caused by:
8.4.1: the Customer’s temporary disablement of the Hosted Website;
8.4.2: outages to any public Internet or telecommunications backbones, networks or services;
8.4.3: any failure of the Customer’s or a Visitor’s equipment, systems or local access services;
8.4.4: previously scheduled maintenance;
8.4.5: any third party hack or unauthorised server access;
8.4.6: events beyond Cumulus Digital Ltd’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labour conditions, earthquakes, natural disasters, or interruption in Internet services to an area where Cumulus Digital Ltd’s or the Customer’s servers are located or co-located; and
8.4.7: any suspension of access to the Hosted Website due to any breach of the Contract by the Customer.
8.5: Cumulus Digital Ltd carries out data backups for use by Cumulus Digital Ltd in the event of systems failure once every 7 days but the Customer acknowledges that Cumulus Digital Ltd does not provide data restoration facilities for individual customers. Even though every effort is made to ensure data is backed up correctly, Cumulus Digital Ltd accepts no responsibility for data loss or corruption. The Customer is therefore responsible for maintaining its own data and providing data restoration facilities. Cumulus Digital Ltd will provide access to its systems to enable the Customer to back up its data following receipt of a written request for access from the Customer.
8.6: Cumulus Digital Ltd reserves the right to monitor any and all communications passing through Cumulus Digital Ltd’s service in connection with the Services in the event that it has reasonable grounds to suspect that the Customer is in breach of its obligations under clause 6.3.
8.7: If the Hosted Website is used for any unlawful use, Cumulus Digital Ltd may suspend or terminate the Hosting Services immediately and at the same time as suspension or termination occurs, Cumulus Digital Ltd shall, if it is lawful to do so, notify the Customer.
9. INTERNET MARKETING SERVICES
9.1: Where Internet Marketing Services are included within the Services, Cumulus Digital Ltd shall provide the Internet Marketing Services in accordance with the Specification, which may include (as applicable):
9.1.1: providing the Internet Marketing Services with the objective of enhancing and optimising the rankings and prominence of the Customer’s website (as set out in the Specification) in the results pages of Internet search engines;
9.1.2: managing the Customer’s keyword and paid advertising including pay per click; and
9.1.3: managing, and publishing content on, one or more of the Customer’s social media accounts (including Twitter, Facebook, Google+ and LinkedIn).
9.2: The Customer acknowledges and agrees that Cumulus Digital Ltd does not guarantee: (i) any search result position for any particular keyword, phrase or search term as it is solely at the discretion of the search engines themselves to list a website; (ii) or the availability of, or the traffic generated by, a keyword; or (iii) any performance targets or exposure generated by publishing content on the Customer’s social media accounts.
9.3: The Customer acknowledges that Cumulus Digital Ltd has no control over the policies of search engines:
9.3.1: with respect to the type of websites and/or content that they accept or the ways in which websites are ranked either now or in the future. As a result search engines may cease to list a website at its discretion and Cumulus Digital Ltd shall not be liable to the Customer for any such actions of search engines; and
9.3.2: with respect to keyword and paid advertising including pay per click, these policies are constantly under development and testing and, as a result, Cumulus Digital Ltd cannot guarantee that the Customer’s advert will appear on any specific page (or at all).
9.4: Cumulus Digital Ltd is not responsible for changes made to:
9.4.1: the Customer’s website following the provision of the Internet Marketing Services by other parties, or the Customer (in choosing to link to or obtain a link from a particular website without prior consultation with Cumulus Digital Ltd),
9.4.2: the Customer’s keyword or paid advertising accounts; or
9.4.3: the Customer’s social media accounts (including the deletion of content or subsequent posting of content), that adversely affects the performance of the Internet Marketing Services (including search engine rankings of the Customer’s website and social media content exposure).
9.5: Cumulus Digital Ltd shall not be responsible for the Customer overwriting actions it has taken as part of the Internet Marketing Services.
9.6: Cumulus Digital Ltd may report to the Customer material issues with the performance of the Internet Marketing Services. Upon the reasonable request of the Customer, and subject to an agreement on costs between the parties, Cumulus Digital Ltd shall use reasonable endeavours to correct any such material issues with the performance of the Internet Marketing Services.
9.7: Solely for the purposes of Cumulus Digital Ltd providing the Internet Marketing Services, the Customer agrees to provide Cumulus Digital Ltd with the following:
9.7.1: (where not already available) administrative or back-end access to the Customer’s relevant website for analysis of its content and structure;
9.7.2: permission for Cumulus Digital Ltd to make changes to the Customer’s website for the purpose of optimisation;
9.7.3: permission for Cumulus Digital Ltd to communicate directly with any applicable third parties connected with the Customer’s website (for example, the Customer’s web designer if not Cumulus Digital Ltd) in order to provide the Internet Marketing Services;
9.7.4: access to existing traffic statistics for the Customer’s website in order for analysis and tracking purposes;
9.7.5: where the Customer’s website is lacking in textual content, the Customer will provide additional text content in electronic format for the purpose of creating additional or richer web pages;
9.7.6: access to the Customer’s relevant social media accounts; and
9.7.7: permission to post and publish, in accordance with the Specification, content on the Customer’s relevant social media accounts.
10. WEBSITE TERMS AND CONDITIONS AND POLICIES
10.1: The Customer acknowledges and accepts that it is responsible for the legal compliance of the Website. If applicable law requires, the Customer must provide and make available to all Visitors all required policies and terms, including (but not limited) to a legally compliant cookie policy and a legally compliant privacy policy.
10.2: Where in the course of providing the Services, Cumulus Digital Ltd provides any template website terms and/or policies (e.g. website terms of use, acceptable use policy, cookie policy and privacy policy), the Customer acknowledges that:
10.2.1: such terms and/or policies, are provided on an as-is basis only and do not constitute legal advice;
10.2.2: the Customer is advised to seek independent legal advice as to the suitability of such terms and/or policies;
10.2.3: Cumulus Digital Ltd makes no warranties in respect of the suitability, validity or completeness of such terms and/or policies; and
10.3 Cumulus Digital Ltd accepts no liability whatsoever with respect to any loss or damage the Customer may suffer arising from:
10.3.1: the Customer’s failure to comply with any legal requirements in respect of the Website;
10.3.2: the Customer’s failure to ensure that it has in place all legally required policies and terms and/or to ensure the legal compliance of any such policies or terms displayed on the Website; or
10.3.3 the use by the Customer of any terms and/or policies provided to it by Cumulus Digital Ltd pursuant to clause 10.2.
11. WEBSITE AUDITS
11.1: Cumulus Digital Ltd may if requested, and if in its sole discretion it deems it appropriate to do so, provide a free website audit service (“Free Audit”). In order to request a Website Audit the person wishing to make the request (“the Requester”) must complete the appropriate form which can be found here. By submitting their details to Cumulus Digital Ltd, the Requester confirms that they are the owner of the website in respect of which they have requested the Free Website Audit.
11.2: By requesting the Audit, the Requester is agreeing to be subject to these Conditions and acknowledges that any personal data provided will be processed in accordance with Cumulus Digital Ltd’s Privacy Policy which can be found here.
11.3: For the avoidance of any doubt, there is no obligation on Cumulus Digital Ltd to provide the Free Audit and the provision of the Free Audit is at the complete discretion of Cumulus Digital Ltd.
11.4: Cumulus Digital Ltd may, without notice to any to any third party, withdraw the Free Audit service from their website at any time.
12. CHANGE CONTROL
12.1: If either party wishes to change the scope or execution of the Services (including the Specification), it shall submit details of the requested change to the other in writing.
12.2: If either party requests a change to the scope or execution of the Services or Specification, Cumulus Digital Ltd shall, within a reasonable time, provide a written estimate to the Customer of:
12.2.1: the likely time required to implement the change;
12.2.2: any necessary variations to Cumulus Digital Ltd’s charges arising from the change;
12.2.3: the likely effect of the change on any estimated timetable for delivery; and
12.2.4: any other impact of the change on the Contract.
12.3: If the Customer wishes Cumulus Digital Ltd to proceed with the change, Cumulus Digital Ltd has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services, the relevant Specification and any other relevant terms of the Contract to take account of such change, and the Contract has been varied.
12.4: Cumulus Digital Ltd may charge for the time it spends assessing a request for change from the Customer on a time and materials basis in accordance with clause 13.
13. CHARGES AND PAYMENT
13.1: Clause 13.2 shall apply if the Services are to be provided on a time-and-materials basis. Clause 13.3 and clause 13.4 shall apply if the Services are to be provided for a fixed price. The remainder of this clause 13 shall apply in either case.
13.2: Where the Services are provided on a time-and-materials basis:
13.2.1: the charges payable for the Services shall be calculated in accordance with Cumulus Digital Ltd’s standard daily fee rates as amended from time to time;
13.2.2: Cumulus Digital Ltd’s standard daily fee rates are calculated on the basis of an eight-hour day worked between 9.00 am and 5.00 pm on weekdays (excluding weekends and public holidays);
13.2.3: Cumulus Digital Ltd shall be entitled to charge at an overtime rate of 150% of the normal rate for part days and for time worked by members of the project team outside the hours referred to in clause 13.2.2 on a pro-rata basis;
13.2.4: Cumulus Digital Ltd shall ensure that all members of the Cumulus Digital Ltd team involved in the provision of Services to the Customer complete time sheets recording time spent, and Cumulus Digital Ltd shall use such time sheets to calculate the charges covered by each monthly invoice referred to in clause 13.2.5; and
13.2.5: Cumulus Digital Ltd shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this clause 13.
13.3: Where the Services are provided for a fixed price the total price for the Services shall be the amount set out in the Specification. The total price shall be paid to Cumulus Digital Ltd in instalments as set out in the Specification (such amounts shall be payable where the project is not completed at the Customer’s request or due to the Customer’s failure to provide instructions or Customer Materials). All amounts due under the Contract shall be paid by the Customer to Cumulus Digital Ltd in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). On the relevant date or at the completion of the relevant stage set out in the Specification, Cumulus Digital Ltd shall invoice the Customer for the charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate), calculated as provided in clause 13.4. Any deposits paid by the Customer are non-refundable. In the event that the Customer terminates this agreement pursuant to clause 18.1 Cumulus Digital Ltd reserves the right to invoice the Customer for the remaining balance of the total price.
13.4: Any fixed price contained in the Specification excludes:
13.4.1: the cost of any disbursements requested by the Customer including images and typefaces;
13.4.2: any additional Services requested by the Customer after a Development Website has been deemed accepted in accordance with clause 5.6; and
13.4.3: VAT, which Cumulus Digital Ltd shall add to its invoices at the appropriate rate.
13.5: The Customer shall pay each invoice submitted to it by Cumulus Digital Ltd in full, and in cleared funds, within 14 days of receipt.
13.6: Cumulus Digital Ltd reserves the right to increase its charges for the Services:
13.6.1: if provided on a time-and-materials basis, upon one month’s written notice to the Customer;
13.6.2: with respect to the Hosting Services, upon one month’s written notice to the Customer; or
13.6.3: if provided on a fixed price, where:
13.6.3.1: the Customer fails to provide any Customer Materials requested by Cumulus Digital Ltd by the date agreed by the parties or as set out in the Specification (or if no date is agreed or set out in the Specification, within 2 weeks of Cumulus Digital Ltd’s request);
13.6.3.2: the Customer enters into the Contract but then requests that Cumulus Digital Ltd place the provision of Services on hold for a period in excess of 2 weeks;
13.6.3.3: in connection with any Development Services but subject to clause 5.4:
(a) the Customer requests additional changes to the Development Website (not set out in the Specification) at any stage including following provision of the test site in accordance with clause 5.3;
(b) any further Services are required to enable the Website to operate in any browser not referred to in clause 5.1.2 or set out in the Specification;
13.6.3.4: in connection with any Hosting Services, where the traffic arising from Visitors exceeds the agreed bandwidth;
13.6.3.5: Cumulus Digital Ltd is required to provide additional Services in order to comply with the Specification due to act, omission or error of the Customer;
13.6.3.6: any additional Services not set out in the Specification are requested by the Customer.
13.7: Without prejudice to any other right or remedy that Cumulus Digital Ltd may have, if the Customer fails to pay Cumulus Digital Ltd on the due date Cumulus Digital Ltd may:
13.7.1: charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;
13.7.2: suspend the provision of any and all Services until payment has been made in full; and
13.7.3: require prepayment of all future Services to be provided by Cumulus Digital Ltd.
13.8: Time for payment shall be of the essence of the Contract.
13.9: All payments payable to Cumulus Digital Ltd under the Contract shall become due immediately on termination of the Contract, despite any other provision. This clause is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
13.10: Cumulus Digital Ltd may, without prejudice to any other rights it may have, set off any liability of the Customer to Cumulus Digital Ltd against any liability of Cumulus Digital Ltd to the Customer.
14. INTELLECTUAL PROPERTY RIGHTS
14.1: All Intellectual Property Rights in the Customer Materials shall remain the property of the Customer.
14.2: All Intellectual Property Rights arising from or in the course of the provision of the Services and in connection with the Contract (including the Development Website, the content of the Development Website and the Site Software), but excluding the Customer Materials, shall be the property of Cumulus Digital Ltd, and Cumulus Digital Ltd hereby grants the Customer a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Website. For the avoidance of doubt, any Intellectual Property Rights which are the property of Cumulus Digital Ltd (or its licensors) at the outset of the Contract shall remain the property of Cumulus Digital Ltd (or its licensors).
14.3: Images used on the Development Website may have been purchased under licence by Cumulus Digital Ltd from a stock image provider. Where this is the case all Intellectual Property Rights in those images will remain with the stock image provider or their licensor. Any images purchased by Cumulus Digital Ltd under licence from a stock image provider are for use on the Development Website only and should not be used in any other manner or for any other purpose, unless the Customer has obtained for itself an appropriate license from the rights holder to do so. Cumulus Digital Ltd is not liable for any misuse of these images by the Customer or any other person’s copying, altering or distribution of such images.
14.4: The Customer shall indemnify Cumulus Digital Ltd against all damages, losses and expenses arising as a result of any action or claim that:
14.4.1: the Customer Materials infringe the Intellectual Property Rights of a third party; and/or
14.4.2: the use of any images purchased under licence by Cumulus Digital Ltd from a stock image provider by the Customer (or any third party authorised by or connected to the Customer) other than on the Development Website in the manner used by Cumulus Digital Ltd infringe the Intellectual Property Rights of any third party.
14.5: The Customer grants Cumulus Digital Ltd a limited, non-exclusive, non-transferrable, revocable and worldwide licence to access and use the:
14.5.1: Customer Materials; and
14.5.2: name, logo, company name and trademark of the Customer, solely for the purposes of providing the Services to the Customer in accordance with the Contract.
14.6: Where the Customer submits Customer Materials (in particular, website content) to Cumulus Digital Ltd for the purpose of providing the Services to the Customer in accordance with the Contract, the Customer:
14.6.1: warrants that:
14.6.1.1: such Customer Materials are the Customer’s own original work or that of its licensors;
14.6.1.2: the Customer has the right to make the Customer Materials available to Cumulus Digital Ltd for the purpose of providing the Services in accordance with the Contract; and
14.6.1.3: the Customer Materials are and will continue to remain accurate, comprehensive and up-to-date and are not unlawful;
14.6.2: indemnifies Cumulus Digital Ltd against all legal fees, damages, claims and other expenses that may be incurred by Cumulus Digital Ltd as a result of the Customer breaching clause 14.5.1; and
14.6.3: acknowledges and agrees that such content may be copied or downloaded by any Visitors.
15. DATA PROTECTION
15.1: Cumulus Digital Ltd will process personal data of third parties provided by the Customer or which is inputted by Visitors comprising of names, email addresses and other contact information as well as technical data such as internet protocol (IP) address, browser type and version, time zone setting and location, browser plug-in types and versions, operating system and platform and other technology on the devices Visitors use to access our website (“the Third Party Personal Data”) in accordance with the provisions of the Data Protection Legislation.
15.2: For the purposes of the Data Protection Legislation, the Customer is the Data Controller in respect of all Third Party Personal Data. Cumulus Digital Ltd acts only as a Data Processor (as defined by the Data Protection Legislation) in respect of the Third Party Personal Data.
15.3: Cumulus Digital Ltd shall process the Third Party Personal Data solely for the purpose of providing the Services as instructed by the Customer in writing unless required to otherwise process it by law (in which case it shall inform the Customer of the same provided it is lawful to do so).
15.4: Cumulus Digital Ltd shall, and will ensure that all persons it authorises to process the personal data shall, keep the Third Party Personal Data confidential and shall not, without the Customer’s express prior consent, divulge any Third Party Personal Data to any third party, other than any third party suppliers, web hosts and developers engaged by Cumulus Digital Ltd for the purpose of the maintenance, management and improvement of the Services, who the Company is hereby specifically authorised to engage, and then only on a strictly confidential basis and on terms which are no less onerous than the terms in this clause 15 and which require such third parties to equally comply with the Data Protection Legislation and respect the provisions of Article 28 of UK GDPR.
15.5: Cumulus Digital Ltd shall take all measures required pursuant to Article 32 of the UK GDPR and will use all reasonable endeavours to keep the Third Party Personal Data safe from unauthorised or unlawful processing or accidental loss. It shall put in place appropriate technical and organisational measures to ensure compliance with the Data Protection Legislation including to ensure the security of processing, to assist you in responding to requests from data subjects in relation to their data subject rights as laid down by the Data Protection Legislation and to assist you in complying with Articles 32 to 36 of the UK GDPR.
15.6: Cumulus Digital Ltd shall retain the Third Party Personal Data in accordance with its Data Retention Policy and shall delete or return to you the Third Party Personal Data once you no longer require the Services or at your earlier request unless required by law to retain it and shall make available to you all information necessary to show Cumulus Digital Ltd’s compliance with this clause including the requirements of Article 28 of the UK GDPR and shall allow for and contribute to any audits or inspections which you or any auditor you appoint wishes to make. Cumulus Digital Ltd shall immediately notify you if, in its opinion, any of the instructions which you provide breach the Data Protection Legislation.
15.7: The Customer warrants that it shall comply with its obligations under the Data Protection Legislation as it relates to the Personal Data that the Customer stores or transfers using the Hosting Services or collects through the Development Website.
15.8: The Customer warrants, represents and undertakes that Cumulus Digital Ltd’s processing of any Third Party Personal Data in accordance with the Contract and its instructions under it will not infringe or breach any rights of any data subject or be otherwise than in accordance with the Data Protection Legislation.
15.9: Cumulus Digital Ltd does not accept and shall have no responsibility, or liability, for the Third Party Personal Data in accordance with the terms of the Contract and the Customer will indemnify Cumulus Digital Ltd against all and any damages, claims, expenses, losses, fines and costs that Cumulus Digital Ltd may incur as a result of any breach of processing the Third Party Personal Data.
15.10: Cumulus Digital Ltd shall process the Customer’s Personal Data in accordance with its Privacy Policy, from time to time, which can be found here and by entering into the Contract, the Customer agrees that it has read the Privacy Policy and that it agrees to adhere to it.
16. CONFIDENTIALITY
16.1: A party (“receiving party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (“disclosing party”), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 16 shall survive termination of the Contract.
17. LIMITATION OF LIABILITY
17.1: Nothing in these Conditions shall limit or exclude Cumulus Digital Ltd’s liability for:
17.1.1: death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
17.1.2: fraud or fraudulent misrepresentation;
17.1.3: breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
17.1.4: any other liability which cannot be excluded or limited under applicable law.
17.2: Subject to clause 17.1, Cumulus Digital Ltd shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of revenue, loss of actual or anticipated profits, loss of contracts, loss of the use of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation, damages, charges or expenses, loss of, damage to or corruption of data or software, or any indirect or consequential loss arising under or in connection with the Contract whatsoever or howsoever caused including, without limitation, any losses:
17.2.1: arising out of or in connection with any misuse of data by an unauthorised third party;
17.2.2: resulting from any third party data, website or systems hack;
17.2.3: resulting from any unauthorised server access;
17.2.4: arising out of or in connection with any errors in code;
17.2.5: arising out of or in connection with the use of code which subsequently becomes obsolete;
17.2.6: arising out of or in connection with the use of any ‘off the shelf’ script which subsequently becomes obsolete; or
17.2.7: resulting from the actions or inactions of any third party service provider engaged in relation to the provision of the Services; or
17.2.8: resulting from account termination of any third party accounts opened or operated by Cumulus Digital Ltd as part of the Services including social media or paid advertising accounts for non compliance.
17.3: Subject to clauses 17.1 and 17.2, Cumulus Digital Ltd’s total liability to the Customer in respect of all other losses arising, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall in no circumstances exceed:
17.3.1: for the Development Services, the total Charges payable in connection with the Development Services in accordance with the Contract;
17.3.2: for the Hosted Services, an amount that is 12 times the monthly recurring fee payable for the Hosting Services in accordance with the Contract as of the time of the occurrence of the event(s) giving rise to the claim;
17.3.3: for the Internet Marketing Services, the total Charges payable in connection with the Internet Marketing Services in accordance with the Contract in the 12 months immediately preceding the event(s) giving rise to the claim;
17.3.4: for the Supplementary Services, the total Charges payable by the Customer to the Supplier in accordance with the Contract in the 12 months immediately preceding the event(s) giving rise to the claim;
17.3.5: where the Services comprise of a combination of any of the Development Services, Hosted Services, Internet Marketing Services and/or Supplementary Services the total amount paid for the aspect or aspects of the Services in respect of which the loss occured in the preceding 12 months but not including any sums paid in relation to any part of the Services unconnected to the loss suffered.
17.4: A number of transgressions whether successive or concurrent, which together result in or contribute to substantially the same loss or damage shall be treated as a single transgression for the purpose of clause 17.3.
17.5: 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 Contract.
17.6: The Customer acknowledges and agrees not to bring any claim in connection with the Services against any individual employed or engaged by Cumulus Digital Ltd.
17.7: This clause 17 shall survive termination of the Contract.
18. TERMINATION
18.1: Except for where the Customer makes a one-off purchase for a fixed price all Customers shall be subject to a minimum Contract term of 12 months (the “Minimum Term”) (or as otherwise previously specified in the Order or any other applicable documents which forms part of the Contract) and, subject to this clause 18, thereafter the Contract will continue until and unless either party terminates the Contract in accordance with their respective obligations pursuant to clause 18.2 below.
18.2: Without limiting its other rights or remedies, the Customer may terminate the Contract, without reason, by giving Cumulus Digital Ltd one month’s written notice to expire no earlier than the expiration of any Minimum Term. For the avoidance of any doubt, the Customer is not entitled under this clause 18.2 to terminate the Contract at any time during any Minimum Term.
18.3: Without limiting its other rights or remedies, and without prejudice to clause 18.5 below Cumulus Digital Ltd may terminate the Contract, without reason, by giving the Customer one months’ written notice.
18.4: Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
18.4.1: the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
18.4.2: the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
18.4.3: the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
18.4.4: a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
18.4.5: the other party (being an individual) is the subject of a bankruptcy petition or order;
18.4.6: a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
18.4.7: an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
18.4.8: the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
18.4.9: a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
18.4.10: any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 18.4.2 to clause 18.4.9 (inclusive);
18.4.11: the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
18.4.12: the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation; or
18.4.13: the Customer acts in breach of the Data Protection Legislation.
18.5: Without limiting its other rights or remedies, Cumulus Digital Ltd may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 7 days after being notified in writing to do so.
18.6: Without limiting its other rights or remedies, Cumulus Digital Ltd may suspend provision of the Services under the Contract or any other contract between the Customer and Cumulus Digital Ltd if the Customer becomes subject to any of the events listed in clause 18.4.2 to clause 18.4.12, or Cumulus Digital Ltd reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
19. CONSEQUENCES OF TERMINATION
19.1: On termination of the Contract for any reason:
19.1.1: the Customer shall immediately pay to Cumulus Digital Ltd all of Cumulus Digital Ltd’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted (including, in respect of fixed cost projects, a fair and reasonable amount in respect of Services provided), Cumulus Digital Ltd shall submit an invoice, which shall be payable by the Customer immediately on receipt;
19.1.2: the Customer shall return all and any Deliverables which have not been fully paid for. If the Customer fails to do so, then Cumulus Digital Ltd may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
19.1.3: unless expressly agreed otherwise, in the event that the Contract related to Hosting Services, the Hosted Website will be deleted from Cumulus Digital Ltd’s servers (at which point it will not be recoverable);
19.1.4: the Customer may request that Cumulus Digital Ltd provide it with a copy of the Website for hosting by a third party. Cumulus Digital Ltd shall consider any such request (in its sole discretion) provided that the Customer has paid all outstanding sums and the Customer agrees to pay any additional sum reasonably requested by Cumulus Digital Ltd for the provision of the copy of its Website. For the avoidance of any doubt, nothing in this clause 19.1.4 shall oblige Cumulus Digital Ltd to agree the Customer’s request which shall be at Cumulus Digital Ltd’s sole discretion. Where Cumulus Digital Ltd agrees to the Customer’s request it shall provide be on the following conditions:
19.1.4.1: the Customer shall only be provided with an archive of the files relating to the Website which Cumulus Digital Ltd is able to provide (from both a legal and practical perspective);
19.1.4.2: the files provided will exclude all stock images which are licensed to Cumulus Digital Ltd;
19.1.4.3: any plugins or themes will be deactivated; and
19.1.4.4: the Customer shall be solely responsible for purchasing all required licences for the Website to function with the alternative hosting provided.
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 Contract which existed at or before the date of termination or expiry;
19.1.5: clauses which expressly or by implication survive termination shall continue in full force and effect.
20. NON-SOLICITATION OF STAFF
20.1: The Customer undertakes that it shall not during the Contract and for a period of one year following its expiry or termination employ or contract the services of any person who is or was employed or engaged by Cumulus Digital Ltd in connection with the Contract.
21: FORCE MAJEURE
21.1: For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of Cumulus Digital Ltd including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Cumulus Digital Ltd or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic or default of suppliers or subcontractors.
21.2: Cumulus Digital Ltd shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
22: GENERAL
22.1: Assignment and other dealings.
22.1.1: Cumulus Digital Ltd may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
22.1.2: The Customer shall not, without the prior written consent of Cumulus Digital Ltd, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
22.2: Notices.
22.2.1: Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
22.2.2: A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 22.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
22.2.3: The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
22.3: Severance. If any provision or part-provision of the Contract 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 the Contract.
22.4: Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
22.5: No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
22.6: Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
22.7: Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Cumulus Digital Ltd.
22.8: Governing law. This Contract, 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.
22.9: Jurisdiction. 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 Contract or its subject matter or formation (including non-contractual disputes or claims).