Granite 5 Limited — Terms of Business

1. Interpretation

The definitions and rules of interpretation set out in the Appendix following these Conditions apply to them.

2. Basis of contract

2.1 The Authority to Proceed constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2.2 The Authority to Proceed shall only be deemed to be accepted when the Supplier issues written acceptance of the Authority to Proceed at which point and on which date the Contract shall come into existence (Commencement Date).

2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, when on its website or in any brochures or other materials, 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.

2.4 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 law, trade custom, practice or course of dealing.

2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.

3. Supply of Services

3.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.

3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Authority to Proceed, a Statement of Work or otherwise, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3 The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

4. Customer's Obligations

4.1 The Customer shall:

(a) ensure that the terms of the Authority to Proceed and any information it provides in the Specification are complete and accurate;

(b) co-operate with the Supplier in all matters relating to the Services;

(c) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

(d) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

(e) keep all materials, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation; and

(f) comply with any additional obligations as set out in the Authority to Proceed;

(g) be responsible for the accuracy and completeness of the Customer Materials in accordance with clause 5; and

(h) ensure that the Customer Data is regularly backed-up and that an appropriate contingency plan is established and maintained by the Customer to minimise the risk of loss, whether as a result of the failure of the Deliverables, Third Party Products, or otherwise. The Customer acknowledges that the Supplier does not provide back-up services, that the Customer is solely responsible for securing the Customer Data, and that the Supplier shall have no liability to the Customer whatsoever in relation to the any loss, destruction or corruption of Customer Data.

4.2 If the Supplier'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):

(a) without limiting or affecting any other right or remedy available to it, the Supplier shall 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 in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;

(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2; and

(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

5. Customer Materials

5.1 The Customer shall ensure that the Customer Materials do not infringe any third party Intellectual Property Rights).

5.2 The Customer shall ensure that the Customer Materials do 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, menacing, or blasphemous) (Inappropriate Content).

5.3 The Customer acknowledges that the Supplier has no control over any content placed on the Development Deliverables by any third party and does not purport to monitor the content thereof. The Supplier reserves the right to remove content where it reasonably suspects such content is Inappropriate Content, but is under no obligation to do so. The Supplier shall notify the Customer promptly if it becomes aware of any allegation that any content may be Inappropriate Content.

6. Development Deliverables

6.1 This clause 6 applies only where the Deliverables include Development Deliverables..

6.2 The Customer shall promptly, following a request from the Supplier to do so, provide written feedback to the Supplier concerning the Supplier's proposals, plans, designs and/or preparatory materials relating to the Development Deliverables.

6.3 The Supplier shall:

(a) liaise with the Customer in developing the look, feel and functionality of the Development Deliverables which may evolve away from the Specification and therefore result in changes to the Charges and / or the timescale for the performance of the Services; and

(b) design, develop and deliver the Development Deliverables in ongoing consultation with the Customer, confirming with the Customer in writing what has been agreed..

6.4 Any Third Party Products shall be supplied in accordance with the relevant licensor's standard terms. The Customer agrees to pay any one-off, initial and/or recurring licence fees or other charges for such Third Party Products in addition to the Charges.

6.5 The Supplier warrants that the Development Deliverables will perform substantially in accordance with the Specification for a period of 60 days from Acceptance when accessed from the then current version and immediately previous version of the following PC and Mac desktop web browsers (but not mobile or tablet browsers, unless otherwise specified in the Specification or agreed by the Supplier in writing): Edge, Safari, and Chrome (excluding alpha and beta releases). If a Development Deliverable does not so perform, the Supplier shall, for no additional charge, carry out any work necessary in order to ensure that the Development Deliverable substantially complies with the Specification.

6.6 The warranty set out in clause 6.5 shall not apply to the extent that any failure of the Development Deliverable to perform substantially in accordance with the Specification is caused by any Customer Materials or Third Party Products or actions or omissions of the Customer.

6.7 The Customer acknowledges that software is never wholly free from defects, errors and bugs. The Supplier gives no warranty or representation that the Development Deliverables will be wholly free from defects, errors and bugs.

6.8 The Customer acknowledges that software is never entirely free from security vulnerabilities. The Supplier gives no warranty or representation that the Development Deliverables will be entirely secure.

6.9 The Supplier gives no warranties or representations as to the prominence of the Development Deliverables within search engine results or as to the business that the Customer will generate through them.

6.10 The Supplier may include a credit naming the Supplier as the developer of each Development Deliverable (in the case of a website, on each page of the website, and otherwise in a position to be agreed by the parties acting reasonably). The credit may, at the Supplier’s option, include a hyperlink to the Supplier’s website.

7. Acceptance of development Deliverables

7.1 This clause 7 applies only where the Deliverables include Development Deliverables.

7.2 Once the Supplier has completed the design and development of the Development Deliverables, the Supplier shall run the Acceptance Tests. The procedure set out in this clause 7 shall be repeated in respect of any further development works agreed by the parties from time to time.

7.3 The Acceptance Tests shall test compliance of the Development Deliverables with the Specification. The form and detail of such tests shall be as specified by the Supplier.

7.4 Acceptance of the Development Deliverables shall occur when the Development Deliverables has passed the Acceptance Tests, at which time the 60-day warranty period set out in clause 6.5 shall commence. The Supplier shall notify the customer when the tests have been passed and provide the results of the Acceptance Tests to the Customer in writing.

7.5 If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Customer or by one of the Customer's sub-contractors, suppliers, consultants or agents (Non-Supplier Defect), the Development Deliverables shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect. the Supplier shall provide assistance reasonably requested by the Customer in remedying any Non-Supplier Defect by supplying additional services or products. The Customer shall pay the Supplier in full for all such additional services and products at the Supplier’s then current fees and prices.

7.6 Acceptance of the Development Deliverables shall be deemed to have taken place if (and at the time that) the Customer uses any part of the Development Deliverables for any revenue-earning purposes or to provide any services to third parties other than for test purposes (for the avoidance of doubt, requesting that a website or application be made live to the public constitutes 'use' under this clause).

8. Support Services

8.1 The Supplier shall provide to the Customer any Support Services specified in the Authority to Proceed or Statement of Work.

8.2 In supplying the Services, the Supplier shall:

(a) perform the Services with reasonable care and skill; and

(b) use reasonable endeavours to perform the Services in accordance with the service description set out in the Authority to Proceed or Statement of Work.

8.3 The Supplier may reasonably determine that any services are Out-of-scope Support Services. If the Supplier makes any such determination, it shall promptly notify the Customer of that determination.

8.4 The Customer acknowledges that the Supplier is not obliged to provide Out-of-scope Support Services, but if it agrees to provide them clause 13.2 shall apply.

8.5 The Customer shall:

(a) co-operate with the Supplier in all matters relating to the Support Services; and

(b) ensure that the Customer Data is regularly backed-up and that an appropriate contingency plan is established and maintained by the Customer to minimise the risk of loss, whether as a result of the failure of the Support Services or otherwise. The Customer acknowledges that the Supplier does not provide back-up services, that the Customer is solely responsible for securing the Customer Data, and that the Supplier shall have no liability to the Customer whatsoever in relation to the any loss, destruction or corruption of Customer Data.

9. SEARCH ENGINE OPTIMISATION SERVICES, ADVERTISING MANAGEMENT SERVICES, EMAIL MARKETING SERVICES AND SOCIAL MEDIA MARKETING SERVICES

9.1 The Supplier shall provide to the Customer any Search Engine Optimisation Services, Advertising Management Services, Email Marketing Services and/or Social Media Marketing Services specified in the Authority to Proceed or Statement of Work.

Search Engine Optimisation Services

9.2 The Customer acknowledges and agrees that:

(a) search engine algorithms will change from time to time, which may affect website rankings in the search engine results pages, and the Supplier has no control over such changes;

(b) it can take months for the Search Engine Optimisation Services to have any significant effects upon the ranking of a website in the search engine results pages;

(c) website promotion is an ongoing task and, should the Customer terminate this Contract and/or stop promoting a website, that may have a negative impact upon the effects of the Search Engine Optimisation Services;

(d) the Supplier will not be responsible for any alterations to a website made by the Customer or any third party that reverse or otherwise affect changes made to that website by the Supplier in connection with the Search Engine Optimisation Services; and

(e) notwithstanding the Search Engine Optimisation Services, a website's search engine results page rankings and traffic levels may decrease as well as increase.

9.3 The Supplier does not give any guarantees in relation to the outcomes of the Search Engine Optimisation Services, and in particular does not guarantee that the Search Engine Optimisation Services will result in higher search engine results page rankings, increased website traffic, increased revenue or increased profits, or any other positive benefits.

Advertising Management Services

9.4 The Supplier shall use its reasonable endeavours to ensure that the Advertising Management Services are provided in such a way as to meet, or have a reasonable prospect of meeting, the objectives set out in the Authority to Proceed or Statement of Work or otherwise agreed by the parties in writing.

9.5 The Customer shall supply to the Supplier such Customer Materials as the parties may have agreed in writing will be supplied by the Customer, and such other Customer Materials as the Supplier may reasonably request from the Customer. Such Customer Materials and marketing materials shall be supplied in accordance with any timetable agreed by the parties, or promptly if no such timetable has been agreed.

9.6 Without prejudice to any other rights the Customer may have, the Customer may at any time request (in writing) that the Supplier arrange for an advertisement published through the Advertising Management Services to be removed from publication; and following receipt of such a request the Supplier must seek to remove the relevant advertisement from publication as soon as reasonably practicable.

9.7 The Supplier shall be responsible for paying third party services providers in respect of fees for advertisements published through the Advertising Management Services. Either:

(a) the Supplier shall pass those advertising fees on to the Customer through the Charges at cost; or

(b) the Customer shall be responsible for paying third party services providers direct in respect of fees for advertisements published through the Advertising Management Services,

as specified in the Authority to Proceed or Statement of Work.

(c) The budget for third party services providers will be as set out in the Authority to Proceed or Statement of Work or otherwise agreed by the parties in writing, but the Customer expressly acknowledges and agrees that it is in the nature of such services that the fees for advertisements may in any month exceed the set monthly budget and be followed by in a reduction in the following or a subsequent month.

Search Engine Optimisation Services and Advertising Management Services

9.8 The Customer shall provide to the Supplier:

(a) assistance in determining appropriate keywords and keyword phrases to be targeted using the Services;

(b) such articles, blog posts and other written materials as the Supplier may reasonably request in connection with the performance of the Services;

(c) direct access to analytical data concerning the Customer's relevant websites, such as data concerning referral sources, visitor activity, website usage, conversion rates and similar; and

(d) an email account using a relevant Customer domain name.

9.9 The Customer acknowledges that the promotion of a website may lead to increased bandwidth, processing capacity and/or storage requirements for the website, and the Customer shall be responsible for:

(a) arranging for any services (such as a hosting upgrade) required to meet such requirements (or, if the Supplier is providing Hosting Services, approving them); and

(b) paying the associated costs (either to the relevant hosting provider where the Customer is arranging hosting or the Supplier where the Supplier is providing Hosting Services).

9.10 The Customer shall provide to the Supplier the facilities to access and make changes to the relevant websites to the extent necessary to enable the Supplier to fulfil its obligations under this Contract.

9.11 The Customer must not reverse, revert or materially alter any changes to the relevant websites made by or upon the instructions of the Supplier in the course of providing the Services without obtaining the Supplier's prior written consent.

9.12 The Customer must not use the relevant websites:

(a) to host, store, send, relay or process any material; or

(b) for any purpose,

which is unlawful, illegal or fraudulent, or which breaches any applicable laws, regulations or legally binding codes, or infringes any third party rights, or may give rise to any form of legal action against any person.

Email Marketing Services

9.13 The Customer shall ensure that any email addresses and associated personal information provided by or on behalf of the Customer to the Supplier for use in connection with the Email Marketing Services has been collected in accordance with applicable law (including Applicable Data Protection Laws), and warrants that the use of such information by the Supplier in accordance with this Contract or the instructions of the Customer will not breach any applicable law (including Applicable Data Protection Laws).

Social Media Marketing Services

9.14 Each party shall comply with the terms and conditions of the Social Media Platforms in respect of its activities relating to the Social Media Marketing Services and this Contract more generally.

9.15 Notwithstanding any plans or projections communicated by the Supplier to the Customer, the Supplier does not give any guarantees in relation to the outcomes of the Social Media Marketing Services, and in particular does not guarantee that the Social Media Marketing Services will result in increased website traffic, user engagement, revenue or profits, or any other positive benefits.

Search Engine Optimisation Services, Advertising Management Services, Email Marketing Services and Social Media Marketing Services

9.16 The Supplier shall have and retain all rights to any Online Accounts that were created by or on behalf of the Supplier before the Effective Date or were used by the Supplier in the connection with the fulfilment of the Supplier's obligations under this Contract only after they had been used by the Supplier to provide services to one or more third parties. The Supplier shall have no obligation to provide to the Customer any access to such Online Accounts, whether during or after the term of the Contract.

9.17 The Customer shall have and retain all rights to any Online Accounts that are created by the Customer or by any third party on behalf of the Customer, whether or not the Customer provides to the Supplier login details to enable the Supplier to utilise those Online Accounts. The Supplier shall not take any action that will prevent the Customer from continuing to access and use such Online Accounts. The Supplier shall not, without the prior consent of the Customer, use such Online Accounts after the termination or expiry of the Contract.

9.18 If the Supplier creates any Online Accounts after the Commencement Date (excluding accounts that the Supplier uses to provide services to a third party customer before use in connection with the fulfilment of the Supplier's obligations under this Contract), then the Customer shall have and retain all rights to such Online Accounts, subject the Supplier having the right to use them to provide the Services. The Supplier shall promptly following receipt of a written request from the Customer supply to the Customer login details for such Online Accounts. If the Supplier has not previously done so, the Supplier shall promptly following the termination or expiry of the Contract supply to the Customer login details for such Online Accounts.

10. HOSTING

10.1 The Supplier shall provide to the Customer any Hosting Services specified in the Authority to Proceed or Statement of Work.

10.2 The Supplier shall create and manage the Hosting Account.

10.3 Except to the extent expressly permitted in this Contract or required by law on a non-excludable basis:

(a) the Customer must not sub-license its right to access and use the Hosting Account;

(b) the Customer must not permit any unauthorised person to access or use the Hosting Account; and

10.4 The Customer shall use all reasonable endeavours, including reasonable security measures relating to Hosting Account access details, to ensure that no unauthorised person may gain access to the Hosting Account or any element of the Hosting Services that is accessible using the Hosting Account.

10.5 The provision of Hosting Services is subject to, and the Customer agrees to at all times comply with, the Hosting Terms.

10.6 The Customer acknowledges and agrees that any availability SLA in respect of the Hosting Services shall be that provided by the Hosting Platform, and that the Supplier shall have no liability to the Customer in relation to any failure to meet that SLA or for any other issues with the Hosting Services.

10.7 The Supplier may suspend the provision of the Hosting Services if any amount due to be paid by the Customer to the Supplier under this Contract is overdue, and the Supplier has given to the Customer at least 30 days' prior written notice, following the amount becoming overdue, of its intention to suspend the Hosting Services on this basis.

11. NON-SOLICITATION AND EMPLOYMENT

The Customer shall not, without the prior written consent of the Supplier, at any time from the date on which the Services commence to the expiry of 12 months after the completion of such Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of such Services.

12. CHANGE CONTROL

12.1 Any request by the Customer to change the scope of the Services shall be considered by the Supplier and, if acceptable to the Supplier, shall be confirmed in a Change Order, but no proposed changes shall come into effect until a relevant Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on the Services, the Charges, the timetable for the Services, and any of the other terms of the Authority to Proceed or Statement of Work.

13. CHARGES AND PAYMENT

13.1 The Charges for the Services shall be calculated on a fixed fee or time and materials basis. Unless otherwise specified in the Authority to Proceed or Statement of Work, the Services shall be provided, and the Charges shall be calculated, on a time and materials basis.

13.2 Where the Customer requests the Supplier to provide any additional work or services that are not set out in the Authority to Proceed or Statement of Work, and the Supplier is agreeable to providing such additional work or services, they shall be charged to the Customer at an additional price, to be agreed in writing between the Customer and the Supplier at the relevant time (in default of which they shall be charged on a time and materials basis in accordance with clause 13.4).

13.3 The Customer acknowledges and agrees that:

(a) any estimate of Charges given by the Supplier represents only the Supplier’s best view of the likely costs at that time, based on the Supplier’s understanding of the Customer's requirements; and

(b) the actual Charges may differ from any estimate given by the Supplier, particularly (but not only) where the Customer's requirements or the scope of the Services change over the course of providing the Services.

13.4 Where the Charges are calculated on a time and materials basis:

(a) the Charges shall be calculated in accordance with the Supplier's daily fee rates, as set out in the Authority to Proceed;

(b) the Supplier's daily fee rates for each individual are calculated on the basis of a 7.5-hour day from 9.00 am to 5.30 pm worked on Business Days; and

(c) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.

13.5 The Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.

13.6 The Supplier shall submit invoices for the Charges plus VAT to the Customer:

(a) in advance for Pre-pay Services;

(b) monthly in arrear for Post-pay Services, unless otherwise specified in the Authority to Proceed or Statement of Work.

13.7 Where the Services are Pre-pay Services:

(a) the Supplier shall deduct the time spent providing the Services from the then current number of unused prepaid hours, as the Services are provided, and such deduction shall be calculated for each individual person on the basis of the total number of hours worked by that person;

(b) the Customer shall ensure at all times that there are sufficient unused prepaid hours in order for the Supplier to provide the Services (and the Customer expressly acknowledges and agrees that the Supplier shall have no obligation to provide, and shall have no liability for not providing, the Services once there are no unused prepaid hours remaining or there are insufficient prepaid hours remaining); and

(i) prepaid hours that are not used within any period specified in the Authority to Proceed or Statement of Work shall expire at the end of such period; and

(ii) any unused prepaid hours are non-refundable, whether on termination (other than by the Customer pursuant to clause 17.2) or expiry of the Contract or otherwise (and the Customer acknowledges this to be reasonable on the basis that the Supplier scales its resources to meet its prepaid hours commitments).

13.8 The Customer shall pay each invoice submitted by the Supplier:

(a) within 14 days of the date of the invoice; and

(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and

time for payment shall be of the essence of the Contract.

13.9 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

13.10 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 17:

(a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 13.10 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and

(b) the Supplier may suspend part or all of the Services until payment has been made in full

13.11 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

14. INTELLECTUAL PROPERTY RIGHTS

14.1 In relation to the Deliverables:

(a) The Supplier and its licensors shall retain ownership of the Background IPRs in the Deliverables;

(b) The Customer and its licensors shall retain ownership of all Customer Materials and the Customer shall own the Foreground IPRs;

(c) The Supplier grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual licence to use, copy and modify the Background IPRs for the purpose of receiving and using the Services and the Deliverables in its business;

(d) The Customer may sub-license the rights granted in clause 14.1(c) to its customers, but otherwise shall not sub-license, assign or otherwise transfer those rights; and

(e) Subject to payment of the Charges by the Customer, the Supplier assigns (including by way of present assignment of future rights where appropriate) to the Customer, with full title guarantee and free from all third party rights, the Foreground IPRs, together with the right to sue for and recover damages or other relief in respect of infringement of the Foreground IPRs.

14.2 In relation to the Customer Materials, the Customer grants to the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services to the Customer.

14.3 The Supplier:

(a) warrants that the receipt and use of the Services and the Deliverables by the Customer shall not infringe the Intellectual Property Rights of any third party to the extent that the infringement results from copying;

(b) shall, subject to clause 16.3, indemnify the customer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all other reasonable professional costs and expenses) suffered or incurred or paid by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third parties Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt or use of the Services and Deliverables.

(c) shall not be in breach of the warranty at clause 14.3(a), and the Customer shall have no claim under the indemnity at clause 14.3(b), to the extent the infringement arises from or in relation to:

(i) the use of Customer Materials in the development of, or the inclusion of the Customer Materials in, the Services or any Deliverable;

(ii) the inclusion of any Third Party Products in the Services or any Deliverable;

(iii) the inclusion of any or industry-standard features or functionality in the Services or any Deliverable;

(iv) any modification of the Services or any Deliverable, other than by or on behalf of the Supplier; or

(v) compliance with the Customer's specifications or instructions.

14.4 The Customer:

(a) warrants that the receipt and use of the Customer Materials in the performance of the Services by the Supplier, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and

(b) shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred or paid by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of the Contract of the Customer Materials.

14.5 If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under this clause 14 the Indemnified Party shall:

(a) notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 14.3(b) or clause 14.4(b) (as applicable) (IPRs Claim);

(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party's prior approval of any settlement terms, such approval not to be unreasonably withheld;

(c) provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party's costs so incurred; and

(d) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.

14.6 If the Supplier reasonably determines, or any third party alleges, that the receipt and/or use of the Services or a Deliverable by the Customer may give rise to a liability under clause 14.3, the Supplier may:

(a) modify the Services and/or Deliverable in such a way that it no longer infringes the relevant Intellectual Property Rights; or

(b) procure for the Customer the right to receive and/or use the Services and/or Deliverable in accordance with this Contract.

15. DATA PROTECTION

15.1 For the purposes of this clause 15, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.

15.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 15 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.

15.3 The parties have determined that, for the purposes of Applicable Data Protection Laws:

(a) the Supplier shall process the Customer Personal Data as processor on behalf of the Customer; and

(b) the Supplier shall act as controller of the Supplier Personal Data.

15.4 Should the determination in clause 15.3 change, the parties shall use all reasonable endeavours to make any changes that are necessary to this clause 15.

15.5 The Customer consents to, (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by the Supplier in connection with the processing of the Supplier Personal Data, provided these are in compliance with the then-current version of the Supplier's privacy policy available at granite5.com/privacy-policy/ (Privacy Policy). In the event of any inconsistency or conflict between the terms of the Privacy Policy and this Contract, the Privacy Policy will take precedence.

15.6 Without prejudice to the generality of clause 15.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Supplier Personal Data and Customer Personal Data to the Supplier and the lawful collection of the same by the Supplier for the duration and purposes of this Contract.

15.7 In relation to the Customer Personal Data, the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject shall be as follows:

(a) Scope: to the extent necessary to provide the Services;

(b) Nature: as necessary and relevant to the provision of the Services;

(d) Duration: for as long as Services requiring the processing are provided by the Supplier;

(e) Types of personal data: as required, depending on the Services being provided; and

(f) Categories of data subject: as applicable, depending on the Services being provided,

and the parties shall document such matters as they consider appropriate during the term of the Contract.

15.8 Without prejudice to the generality of clause 15.2, the Supplier shall, in relation to Customer Personal Data:

(a) process that Customer Personal Data only on the documented instructions of the Customer, which shall be to process the Customer Personal Data for the purposes set out in clause 15.7, unless the Supplier is required by Applicable Laws to otherwise process that Customer Personal Data (Purpose). Where the Supplier is relying on Applicable Laws as the basis for processing Customer Processor Data, the Supplier shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer on important grounds of public interest. the Supplier shall inform the Customer if, in the opinion of the Supplier, the instructions of the Customer infringe Applicable Data Protection Laws;

(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which the Customer has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

(c) ensure that any personnel engaged and authorised by the Supplier to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

(d) assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Customer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(e) notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;

(f) at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the Contract unless the Supplier is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause 15.8(f) Customer Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and

(g) maintain records to demonstrate its compliance with this clause 15.

15.9 The Customer provides its prior, general authorisation for the Supplier to:

(a) appoint processors to process the Customer Personal Data, provided that the Supplier:

(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this clause 15;

(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and

(iii) shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to the Supplier's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection.

(b) transfer Customer Personal Data outside of the UK as required for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).

15.10 Either party may, at any time on not less than 30 days' notice, revise this clause 15 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Contract).

16. LIMITATION OF LIABILITY

16.1 References to liability in this clause 16 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

16.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation; and

16.3 Subject to clause 16.2 (Liabilities which cannot legally be limited), the Supplier's total liability to the Customer shall not exceed 125% of the total Charges paid by the Customer in the period of 12 months preceding the date on which such liability arises.

16.4 Subject clause 16.2 (Liabilities which cannot legally be limited), this clause 16.4 sets out the types of loss that are wholly excluded:

(a) loss of profits.

(b) loss of sales or business.

(d) loss of anticipated savings.

(e) loss of use or corruption of software, data or information.

(f) loss of or damage to goodwill; and

(g) indirect or consequential loss.

16.5 The exclusions set out in clause 15.4 shall not apply in respect of any liability under clause 14.3(b) or clause 14.4(b) (indemnities).

16.6 The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

16.7 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire six months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

16.8 This clause 16 shall survive termination of the Contract.

17. TERMINATION

17.1 Without affecting any other right or remedy available to it, and without liability to the Customer for so doing, the Supplier may terminate the Contract at any time by giving the Customer three months’ prior written notice.

17.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) 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;

(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

17.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

17.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if:

(a) the Customer fails to pay any amount due under the Contract on the due date for payment;

(b) the Customer becomes subject to any of the events listed in clause 17.2(c) or clause 17.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them; or

(c) the Supplier reasonably believes that the Customer is about to become subject to any of the events listed in clause 17.2(b).

18. CONSEQUENCES OF TERMINATION

18.1 On termination or expiry of the Contract:

(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier 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 the Contract.

18.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, 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.

18.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

19. GENERAL

19.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

19.2 Assignment and other dealings.

(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.

19.3 Confidentiality.

(a) Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 19.3(b).

(b) Each party may disclose the other party's confidential information:

(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 19.3; and

(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.

19.4 Entire agreement.

(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

19.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

19.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

19.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract. If any provision or part-provision of this Contract deleted under this clause 19.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

19.8 Notices.

(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be: delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the following address:

(i) Notices to the Supplier: [email protected];

(ii) Notices to the Customer: any email address to which emails have been sent previously by the Supplier in relation to the Services.

(b) Any notice shall be deemed to have been received:

(i) if delivered by hand, at the time the notice is left at the proper address;

(ii) 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; or

(iii) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 19.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

(c) This clause 19.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

19.9 Third party rights.

(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

19.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.

19.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

Appendix

1. DEFINITIONS:

Acceptance: in relation to a Development Deliverables, the acceptance or deemed acceptance of the Development Deliverables pursuant to clause 7.

Acceptance Tests: in relation to a Development Deliverables, the tests to be carried out on the Development Deliverables in accordance with clause 7.

Advertising Management Services: the arrangement and management of internet advertising by the Supplier for the Customer, which may include pay-per-click advertising, pay-per-view advertising, banner advertising and other forms of paid internet advertising, as specified in the Authority to Proceed or Statement of Work;

Applicable Data Protection Laws: means:

(a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.

(b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.

Authority to Proceed: as the context requires, the document of the same name issued by the Supplier to the Customer in relation to the Service and/or the Customer's acceptance of it.

Background IPRs: all Intellectual Property Rights that are owned by or licensed to the Supplier and which are or have been developed independently of the Services in each case either subsisting in the Deliverables or otherwise necessary or desirable to enable the Customer to receive and use the Deliverables.

Business Day: a day other than a Saturday, Sunday or public holiday in England, 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 given in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 19.5.

Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Customer: the person or firm who purchases Services from the Supplier.

Customer Data: the data inputted by the Customer, its authorised users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.

Customer Default: has the meaning set out in clause 4.2.

Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Services, including the items provided pursuant to clause 4.1(c).

Customer Personal Data: any personal data which the Supplier processes in connection with this Contract, in the capacity of a processor on behalf of the Customer, as set out in the Authority to Proceed or Statement of Work.

Deliverables: the deliverables (including any Development Deliverable, where applicable) set out in the Authority to Proceed or a Statement of Work or as otherwise agreed between the parties in writing.

Development Deliverables: where stated in the Authority to Proceed or a Statement of Work, the element(s) of the Deliverables comprising a website or application to be developed by the Supplier, as detailed in the Specification.

Email Marketing Services: means some or all of the following services as specified in the Authority or Proceed or Statement of Work:

(a) assisting with and advising upon the Customer's email marketing strategy;

(b) designing, in consultation with the Customer, the forms, emails and web pages to be used in connection with email marketing lists and campaigns;

(d) running the Customer's email marketing campaigns, including sending emails to addresses in the Customer's email marketing lists; and

(e) providing the Customer with written reports about these services detailing numbers of subscriptions and unsubscribes during each calendar month, and numbers of emails sent, returned and opened during each mailing.

EU GDPR: the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.

Foreground IPRs: all Intellectual Property Rights in the Deliverables, other than Background IPRs.

Hosting Account: an online account enabling a person to configure and manage the Hosting Services.

Hosting Platform: the third party platform managed by the Supplier and used by the Supplier to provide the Hosting Services.

Hosting Services: those web hosting services specified in the Authority to Proceed or Statement of Work which will be made available by the Supplier to the Customer as a service via the internet in accordance with this Contract.

Hosting Terms: the terms and conditions on which the third party provider provides the Hosting Platform, which are set out at https://nimbushosting.co.uk/docs/Nimbus_Hosting_Terms_and_Conditions.pdf or https://aws.amazon.com/legal/ (depending on the chosen Hosting Platform), as updated or replaced from time to time.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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.

Online Account: any user or customer account on any third party website, or on any third party software application accessible via the internet, that is used by the Supplier in the course of providing the Search Marketing Services, Advertising Management Services, Email Marketing Services and/or Social Media Marketing Services.

Out-of-scope Support Services: any services required by the Customer that are not specified in the Authority to Proceed or Statement of Work.

Post-pay Services: Services where the Charges are to be invoiced and paid in arrears.

Pre-pay Services: Services where the Charges are to be invoiced and paid in advance.

Search Engine Optimisation Services: any or all of the following services, as specified in the Authority to Proceed or Statement of Work:

(a) researching the history of websites, their structure and their performance in the search engine results pages;

(b) keyword research in relation to websites;

(d) modification of websites (including adding, deleting and/or altering text, images, pages, meta-tags, titles, mark-ups, style sheets, scripts, applications, internal and external links and website structure);

(e) unpaid submissions to search engines, directories and other listings website;

(f) the creation and publication of material relating to the Customer on websites;

(g) link building;

(h) the use of social media and social networks to generate signals that may have a direct or indirect effect on search engine rankings; and

(i) other search engine optimisation techniques, whether known on the Effective Date or devised or disseminated thereafter.

Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification.

Social Media Marketing Services: any or all of the following services, as specified in the Authority to Proceed or Statement of Work:

(a) the management of Online Accounts connected to the Customer on Social Media Platforms;

(b) the establishment and growth of user networks associated with such accounts;

(d) the publication of such content on and distribution of such content through Social Media Platforms; and

(e) the monitoring and analysis of the impact of these services.

Specification: the description or specification of the Services provided in writing by the Supplier to the Customer, whether in the Authority to Proceed, a Statement of Work referred to in the Authority to Proceed or otherwise.

Supplier: Granite 5 Limited registered in England and Wales with company number 03844184 whose registered office is at Unit 4 Fenice Court, Phoenix Business Park, Eaton Socon, St. Neots, Cambridgeshire PE19 8EP.

Supplier Materials: has the meaning set out in clause 4.1(e).

Supplier Personal Data: any personal data that the Supplier processes in connection with this Contract, in the capacity of a controller, as further described the Authority to Proceed or Statement of Work.

Support Services: the support services, including without limitation any Deliverables, to be provided by the Supplier pursuant to the Contract, as specified in the Authority to Proceed or Statement of Work.

Third Party Products: any third party software products, code, plug-ins or services (whether open source or proprietary).

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

2. INTERPRETATION:

2.1 A reference to legislation or a legislative provision:

(a) is a reference to it as amended, extended or re-enacted from time to time; and

(b) shall include all subordinate legislation made from time to time under that legislation or legislative provision.

2.2 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2.3 A reference to writing or written includes email.