Mixd Services Agreement

Last updated: 15th January 2010

How this agreement works

You will be asked to sign a Service Order Form (“SOF”) that lists the services you have chosen and the related fees. The SOF will incorporate this Mixd Services Agreement (“MSA”). It may also incorporate an addendum to this MSA if you are purchasing specific optional services. When we use the term “Agreement” in any of these documents, we are referring collectively to all of them. The Agreement is effective as of the time that the SOF is signed.

Definitions

Some words and expressions are defined in the SOF and they apply equally here. Some other words and expressions used have the following particular meanings:

“Acceptance Tests” means testing the Services by the Customer to ensure that they meet the Specification;

“Acceptance Date” means the date on which acceptance or deemed acceptance of the Services by the Customer pursuant to Clause 7;

“Company” or “Mixd” or “we” or “us” or “our” means Mixd whose principal place of business is at: Mixd, 7 Alexandra Road, Harrogate, North Yorkshire HG1 5JS;

“Completion Date” means the date specified in the Project Plan or otherwise agreed in writing between the Company and the Customer, by which the Company is to provide the Services;

“Confidential Information” of a party (the “Disclosing Party”) means all information of the Disclosing Party, which has value by virtue of not being publicly known and which is disclosed or otherwise made available to the other (the “Receiving Party”) under this Agreement;

“Customer Systems” means the servers, systems, hardware, software and other IT equipment, products and/or services owned, controlled and/or used by the Customer;

“Customer” or “you” or “your” means the company, organisation, body or other entity named in the SOF;

“Data” means information and other materials of any kind in any form including (but not limited to) documents, text, software and electronic content such as (but not limited to) music, sound, photographs, graphics, video and messages;

“Fee(s)” means the fee(s) set out in the SOF;

“Force Majeure” means any event beyond the reasonable control of the affected party;

“Hand-Over Date” means the date specified in the Project Plan or otherwise agreed in writing between the Company and the Customer, by which the Company is to provide the Services ready for Acceptance testing by the Customer in accordance with Clause 5;

“Non-Company Defects” means a defect which is caused by an act or omission of the Customer, by one of the Customer’s sub-contractors or agents for which the Company has no responsibility or is due to Third Party Products not supplied by the Company.

“Parties” means the both of Mixd and the Customer; “Party” means each of them;

“Professional Services” means any non-standard professional consulting or support services provided by us;

“Project Plan” the timetable for the performance of this Agreement as amended from time to time under Clause 4.4;

“Regulations” means any and all applicable laws (including but not limited to the subordinate legislation), statutes, regulations, standards and/or codes of conduct whether or not compulsory and including (without limitation) the Data Protection Legislation;

“Service Commencement Date” means the date upon which the SOF is agreed and signed or otherwise agreed in writing between the Company and the Customer;

“Services” means the services to be provided by us as set out in the SOF and includes management of the Services;

“Source Code” means the source code of the Services and all other materials necessary for the proper understanding, development, correction, improvement, support and maintenance of the Services without reference to any other materials or person;

“Specification” means the Specification document developed by the Company and provided to the Customer, as amended from time to time under Clause 4.4;

“Staff” means in relation to each Party, the employees, directors, partners, officers, consultants, contractors, agents, advisors and sub-contractors of that Party;

“Supplemental Fee(s)” means all fee(s) payable by you in respect of any Professional Services. All of which shall be in accordance with our then current prices and pricing policy if not agreed in writing in advance with you in the SOF.

“Warranty Period” means the period of 3 calendar months commencing on the Acceptance Date.

1. Commissioning of work

1.1 Work will be deemed to be commissioned from the us through one or more of the following methods:
1.1.1 Call reports: all meetings, telephone, email and fax communications between the Company and the Customer may be recorded.
1.1.2 Any instruction, approval or authorisation recorded in call reports will be deemed to constitute an instruction for the Company to commence activity on the Customer’s behalf.
1.1.3 Letters of instruction, approval or authority from Customer to the Company will be deemed to constitute an instruction for the Company to commence activity on the Customer’s behalf.
1.1.4 Letters of confirmation from the Company to Customer will be deemed to constitute an instruction for the Company to commence activity on the Customer’s behalf.
1.1.5 Emails or any other electronic instruction, approval or authority from Customer to the Company will be deemed to constitute an instruction for the Company to commence activity on the Customer’s behalf.
1.2 Clauses 1.1.1, 1.1.2, 1.1.3, 1.1.4, 1.1.5 above will apply unless the contents of the call reports, letters of instruction, letters or emails of confirmation are rescinded within 24 hours from date of receipt of such call report, email, letter of instruction or letter of confirmation.
1.3 The Company will be entitled to charge the Customer for all work commissioned in the above manner at the Company’s then current fees and prices.
1.4 All work commissioned in the above manner will be subject to the terms of this Agreement. Additionally, the Terms and Conditions of Business of all the Companies suppliers including the Media will be binding on the Customer.
1.5 If the Customer places an order for Services without first having received an estimate such an order shall constitute an invitation to treat only and this Agreement alone shall apply unless otherwise specifically agreed in writing when the offer by the Company is made.

2. Approval of services

2.1 When obtaining approval of Services, the Company will normally submit for specific approval: copy, layouts, designs, visuals, storyboards, artwork, proofs, scripts, source code, project plans, fees, quotes and estimates for all Services as required.
2.2 Customer approval of the above recorded in call reports, letters or emails of confirmation will be binding.
2.3 The Customer may change, reject, cancel or stop any and all plans, schedules or work-in-progress and the Company will take all possible steps to comply, having regard to contractual responsibilities to suppliers.
2.4 Upon cancellation or amended instructions, the Customer will be liable to the Company for all costs or expenses already incurred which can include cancellation charges from other suppliers.

3. Fees and payment

3.1 Unless otherwise agreed in writing between the Company and the Customer, on the Service Commencement Date the Company will send the Customer an invoice for 20% of the total project Fees as set out in the SOF. The Company reserves the right not to commence until the payment is received in full. The remainder of the project Fees will be invoiced on Acceptance of the Services under Clause 5.
3.2 The Company will send the Customer an invoice for any Supplemental Fees as soon as we have provided the Professional Services.
3.3 The Customer shall make payment of the Fees within 30 days from the date of invoice.
3.4 If the Customer does not pay within 30 days after the invoice date we reserve the right to:
3.4.1 charge interest at 3% per year above the Bank of England’s base lending rate from the invoice date until actual payment; and
3.4.2 suspend any or all of the Services until payment of the invoice, any interest, our administrative and legal costs of collecting payment, and any further sums payable are received by us. All Data provided by the customer or created by the Company will be destroyed after 14 days unless alternative arrangements are made with us.
3.4 All Fees and Supplemental Fees are exclusive of applicable Value Added Tax or other relevant taxes.

4. Services

4.1 The Customer has, on or prior to placing its order for the Services, notified and discussed with the Company its desired specification and requirements in respect thereof. It is agreed that all such specifications and requirements as have been agreed between the parties, are incorporated into the Specification. Any changes to the Specification must be set out in writing by the Customer and be agreed in principal by the Company. The Specification sets out in full the work that is required by the Customer.
4.2 Subject to the terms and conditions of this Agreement, the Company agrees to provide the Services specified in the SOF and as detailed in the Specification.
4.3 The Company will use reasonable skill and care to supply the Services.
4.4 The Parties may agree to extend or limit the scope of the Services from time to time by agreeing to the same in writing. Where the Services are to be varied, the Company reserves the right to vary the Fees accordingly.
4.5 The Company shall use its best and reasonable endeavors to adhere to all provisions in the Specification.  Where such requirements cannot reasonably be accommodated, the Company reserves the right to amend the Specification in accordance with Clause 4.4 above.
4.6 Where the Company uses any third-party services such as (but not limited to) site search facilities, chat rooms, discussion boards, blogs, email, web hosting or search engines submission services, the Company cannot be held responsible for those third-party service commitments, quality or availability.
4.7 The Customer agrees that they will be responsible for the accuracy of all Data and ensuring that all Data supplied is legally permitted for use. The Customer also accepts responsibility for final proof-reading and testing of the Services.
4.8 Unless otherwise agreed in writing, the Customer will be solely responsible for keeping regular and full backups of all Data hosted by the Customer on the Customer Systems.

5. Testing, acceptance and warranty

5.1 Subject to clause 5.3, the Customer shall have a period of 30 calendar days following (whichever applicable) the Hand-Over Date or following notification by the Company that the Services have been deployed and are available for the purpose of conducting Acceptance Tests (“the Test Period”). The Customer must notify the Company of any alleged failure to comply with the Specification (“Defect”) during the Test Period. If no such notification of a Defect is given during the Test Period the Services shall be conclusively presumed to be in accordance with the Specification and free from Defect or damage which would be apparent from reasonable testing and the Customer shall deemed to have accepted the Services with effect from the expiry of the Test Period.
5.2 If the Customer shall notify the Company of a Defect during the Test Period (subject to clauses 5.4 and 5.5), the Company will have a period not exceeding 14 days from the date of such notification (“Correction Period”) within which to carry out such amendments to the Services as may be necessary in order to bring it into conformity with the Specification. Subject to clause 5.3, on the completion of which (and in any event before or at the latest by the expiration of the Correction Period) the Company will make the Services available to the Customer in order to carry out further Tests (“Re Test”) the Customer shall have a further period of 30 days (“the Repeat Test Period”) within which to carry out the Re Tests. If no notification of a Defect is given during the Repeat Test Period the Product shall be conclusively presumed to be in accordance with the Specificaiton and free from Defect or damage which would be apparent from reasonable testing and the Customer shall be deemed to have accepted the Services with effect from the expiry of the Repeat Test Period.
5.3 If a Defect shall occur during the Re-Tests then (subject to clauses 5.4 and 5.5) the Customer may, at its option:
5.3.1 return the Services to the Company subject to the relevant outstanding Defects being remedied within a period reasonably stipulated by the Customer (provided that any failure by the Company to ensure that the Services are Accepted by the expiration of that period so stipulated shall entitle the Customer to exercise (in its discretion) the rights set out at clauses 5.3.2 or 5.3.3);
5.3.2 formally accept the Services for all purposes subject to a refund or (in respect of fees unpaid but which are due) allowance (whichever applicable) of the price payable in respect of the Services and/or associated services to fairly reflect the extent to which the Services (operating as a whole) is impaired by the failure to pass the Acceptance Tests. Such refund or allowance shall be agreed between the parties within a period of 7 days following the date on which the relevant Defect(s) was notified to the Company or the Completion Date (whichever applicable). In default of such agreement within such period, the Customer shall be entitled to exercise the rights set out at clause 5.3.3 of these conditions;
5.3.3 (only in circumstances where after the Re-Tests the Services still contain a material defect which has the effect of making the Services non-compliant with the Specification in a material respect which renders the Services unusable by the Customer) by written notice to the Company reject the Services in its entirety and terminate the Agreement without liability to the Company (including, without limit, any liability to pay any outstanding fees which, at the time of (and but for) such termination, remain outstanding and are due to be paid) on the basis of a total failure of consideration. In the event of such termination pursuant to this clause 5.3.3, the Company will repay to the Customer all fees and charges paid to the Company by the Customer under or in connection with this Agreement. In consideration of the payment made by the Company in accordance with the foregoing provisions of this clause 5.3.3, the Customer will promptly return to the Company all equipment, documentation, software or other information belonging to the Company then held by it and the Company will return to the Customer all equipment, documentation or other information belonging to the Customer then held by it.
5.4 If any failure to pass the Tests in this clause results from a Defect which is caused by an act or omission of the Customer, by one of the Customer’s sub-contractors or agents for which the Company has no responsibility or is due to Third Party Products not supplied by the Company (“Non-Company Defects”), the Services shall be deemed to have passed the Tests notwithstanding such Non-Company Defects. The Company shall provide assistance reasonably requested by the Customer in remedying any Non-Company Defects by supplying additional services or products. If so requested, the Customer shall pay the Company in full for all such additional Services and products at the Company’s then current fees and prices.
5.5 Acceptance of the Services shall be deemed to have taken place upon the happening of any of the following events:
5.5.1 the Customer uses any part of the Services “live” (that is, for any revenue-earning purposes or to provide any services to third parties) other than for test purposes a period of 14 days following live deployment of the Services on the internet during which the use of the Services shall continue to form part of the acceptance tests to be carried out in accordance with this clause 5; or
5.5.2 the Customer unreasonably delays the start of relevant Acceptance Tests or any retest for a period of 7 working days from the date when the Company notifies the Customer that the Services are ready to commence running the Acceptance Tests or Re Test.
5.6 The Company warrants that it will perform the Services with reasonable skill and care and in a professional manner conforming to best industry practice. The Company further warrants that from the Acceptance Date for the Warranty Period the Services will perform substantially in accordance with the Specification (minor interruptions and errors excluded and also excluding any amendments or alterations made to the Services by any third party without the Company’s prior written consent). In the event that the Customer alleges that the Services are not in accordance with the warranties given by the Company in clause 5 during the Warranty Period the Customer must notify the Company in writing as soon as possible after becoming aware of the same.
5.7 On receipt of any claim by the Customer identifying a breach of the warranties set out in clause 5.6 the Company shall, provided it has received written notice of the Defect or error within the Warranty Period and that it is not a Non-Company Defect, at its own expense, promptly remedy such failure or breach by replacement or repair or (where appropriate having used its reasonable endeavours to do so) allow the Customer a rebate (hereinafter specified) against any sum paid or payable by the Customer in respect of such defective Services. The said rebate shall be:
5.7.1 A fair discount not exceeding the value of the defective Services as determined by the Agreement (“the Agreement Value”); or
5.7.2 if the Services were supplied by a third party, such maximum allowance (if lower than the Agreement Value) as the Company shall be able to negotiate from such third party or agent.

6. Delivery

6.1 Any time or date (other than as agreed in writing between the parties or otherwise contained in the Specification or in this Agreement (including, but not limited to, the Completion Date and the other timescales specified in Clause 5 of this Agreement) named by the Company for delivery of the Services or performance of the Services is given and intended as an estimate only and the Company shall not be liable to make good any damage or loss whether arising directly or indirectly out of delay in delivery.

7. The Mixd Support promise

7.1 We will provide support services by telephone or email during our ‘standard office hours’ which are: 09:00 – 17:30 UK local time on normal business days and excluding UK national holidays. Our normal business hours are stated on the Mixd website which can be found at: http://www.mixd.co.uk/hosting/normal-office-hours
7.2 In the event of an emergency outside of the Mixd standard office hours, you may contact the Emergency Support helpline as detailed in your Welcome Pack.
7.3 Only Emergency issues are responded to outside normal business hours. An “Emergency” issue is defined as unavailability of your Services for reasons beyond your control (excluding planned maintenance).
7.4 Mixd will be under no obligation to provide support for products or services not supplied by Mixd.

8. Domain name registration

8.1 If we are requested to register a domain name(s) on behalf of you at no time do we represent that any particular domain name is available for registration.
8.2 You may request the purchase of a domain name(s) by way of the SOF or other order form agreed by the parties in writing, detailing the domain name(s) required and the associated fees. In the event that we agree in writing with the Customer to provide such domain names then the same shall be included within the “Services” and shall be subject to the terms and conditions of this Agreement.
8.3 Subject to any prior third party rights in the required domain name(s), we will seek to purchase the domain name(s) on behalf of you and shall arrange for you to be the designated proprietor of the domain name(s).
8.4 Unless otherwise agreed by both Parties, we will be the administrative contact. We will inform you when a domain name is due for renewal and, at the written request and cost of you, will arrange for the domain name to be renewed.
8.5 The registration and use of domains names is subject to the terms and conditions of the relevant naming authority.
8.6 If payments are not received in respect of domain name registrations we may cancel or retain them.
8.7 You are responsible for ensuring you have rights to use the domain names that are registered through us and you hereby indemnify us for any loss of whatsoever nature incurred by us in that regard. In the event of a dispute between you and third parties in respect of the rights to domain names, we retain the right to suspend or cancel disputed domain names.

9. Ownership rights and confidentiality

9.1 Both Parties agree that this Agreement does not transfer any rights of ownership in the other’s technology nor intellectual property. Both Parties agree not to try to access each other’s and each other’s third party supplier’s Source Code or other trade secrets.
9.1 The Receiving Party agrees that; it will use the Disclosing Party’s Confidential Information solely for the purpose of the Agreement; and it will not disclose Confidential Information to any third party except as required under the terms of this Agreement.
9.2 All Intellectual Property Rights in software and/or any source code created or developed for the Services including documents or other work or materials used or created by us in performing our obligations under the Agreement shall remain the property of the Company (or its licensors in respect of the third party software or materials) and that no Intellectual Property Rights in such work or materials will be transferred to the Customer or any of its subsidiary companies.
9.3 All designs and content (front-end) will become the sole copyright of the Customer upon final and complete payment of the Fees.

10. Warranty and Liability

10.1 We warrant that we will use all reasonable skill and care in performing this Agreement and will comply with all relevant laws, statutes and Regulations (including the Data Protection Act 1998).
10.2 Termination of the Agreement is your only remedy for our failure to meet our warranted performances.
10.3 Subject to clause 10.4:
10.3.1 our total aggregate liability for any loss or damage arising out of or in connection with the Services, the Professional Services, or this Agreement will not exceed the actual Fees received by us during the previous 6 months of this Agreement; and
10.3.2 we will not be liable in any way for any increased costs nor expenses, loss of profit, business contracts, revenues nor expected savings nor any special, indirect nor consequential damage whatsoever arising out of this Agreement nor any provision of it nor use of the Services or Professional Services nor of our negligence, nor any error nor defect in either nor of the performance non-performance nor delayed performance by us under this Agreement.
10.4 Nothing in this Agreement excludes or limits our liability for fraudulent misrepresentation or for death or personal injury caused by our negligence.
10.5 Except for the warranties given in this Agreement, all implied or other warranties are excluded to the extent we are legally able to do so.
10.6 We will not be deemed to break this Agreement nor be liable for any delay, failure of performance nor interruption of the Services to you nor loss caused by Force Majeure.

11. Other products and services

11.1 At your request and subject to you entering into their standard contracts, we may provide third party software and/or services and may also provide product support for them.
11.2 You agree that the use of third party products is in accordance with their standard contracts and is at your sole risk and we are not responsible in any way for their performance, features or failures.

12. Ending this agreement

12.1 The Company will provide the Services and any Professional Services from the Service Commencement Date until the Customer Acceptance of the Services or until one of us ends the Agreement below or as otherwise permitted in the Agreement.
12.2 Either Party may end this Agreement:
12.2.1 on 30 days written notice to the other; or
12.2.2 straight away if the other breaches this Agreement and if the breach is capable of being remedied, has not remedied it within 7 days of receipt of the written notice requiring it to be remedied; or
12.2.3 straight away if the other is unable to pay its debts or enters into compulsory or voluntary liquidation or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed or ceases for any reason to carry on business or takes or suffers any similar action which means that it may be unable to pay its debts.
12.3 We may terminate this Agreement at any time for any reason whatsoever on 30 days’ written notice to you.
12.4 On termination by either party the following will apply:
12.4.1 any rights or obligations which have accrued prior to termination will not be affected;
12.4.2 all Confidential Information belonging to the other will be returned or destroyed within 14 days;
12.5 On termination by either party the Company will not be liable for any third party costs incurred by the Customer.
12.6 If this Agreement is terminated, the Customer will still be liable to pay all Fees up until termination. Any Fees already paid that relate to a term following the termination will be refunded. Fees charged on a prepay basis are non-refundable.

13. Law and disputes

13.1 This Agreement shall be governed by English law.
13.2 Both Parties agree to attempt in good faith to clear up any dispute first by discussing it. If that does not work then, except for debt recovery, we each agree to attempt in good faith to resolve the dispute through mediation by the Centre for Effective Dispute Resolution in accordance with their rules. Their decision will be final and binding on the parties. If it hasn’t been resolved by the CEDR procedure within 2 months of the start of the procedure or if one of us drops out of the CEDR procedure then each agrees to the non exclusive jurisdiction of the Courts of England.

14. General legal provisions

14.1 If any part of this Agreement is unenforceable the remainder will continue to apply.
14.2 We won’t be considered to be partners nor shall we be responsible for any act or failure to act of the other or have the right or authority to bind the other in any way.
14.3 A third party won’t have any rights under this Agreement.
14.4 Neither Party may transfer or assign all or substantially all of its rights or duties under this Agreement without the prior written consent of the other except that each of us may transfer all or part of its rights or duties to any group company or affiliates who in the other’s reasonable opinion have sufficient assets to meet the obligations of such assignment under this Agreement.
14.5 All formal notices required to be sent shall be by letter. A letter shall be delivered at the address given in the SOF, by recorded delivery post. If the notice is not returned as undelivered it will be deemed to have been given 3 working days after the day on which it was sent. All other notices will be sent by email to the contact email address given in the SOF. If the email is not returned as undelivered within 24 hours it will be deemed to have been given upon the date sent.
14.6 If one of us does not enforce a right available to it under this Agreement in any particular instance, then that will not prevent it from enforcing that right in future or in any other instance.
14.7 Each of us agrees that during this Agreement and for 1 year after that it will not directly or indirectly seek to hire any of the other’s staff who provided or used the Services.
14.8 This Agreement and any documents referred to in it constitutes the whole agreement between us and supersedes any previous arrangement, understanding or agreement between us relating to the subject matter of this Agreement.
14.9 Each of us gives the other its consent to positively publicise that we have a business relationship, but not to disclose the terms of it.