© 2018 Markooo. All rights reserved.
Last updated on 3rd April 2017
1.1 These terms and conditions are the terms and conditions applicable to any Agreement made between Markooo and the Client and comprising the Proposal and these terms and conditions whether for all or any of Website Development, Graphic Design or Website Hosting.
1.2 The Agreement shall comprise only the Proposal and these terms and conditions but may be amended by agreement in writing between the Parties. No other terms offered or proposed to be incorporated by the Client shall be of any effect
As used herein and throughout the Agreement:
2.1 Agreement means the Proposal and these terms and conditions, and any other documents incorporated into the Agreement by agreement in writing.
2.2 Business Day means a day which is not a Saturday or Sunday or public holiday in Serbia;
2.3 Business Hours means 9 am to 7:00 pm on a Business Day;
2.4 Client means the acceptor of the Proposal.
2.5 Client Content means all materials, writing, images or other creative content provided by Client to be used in preparing or creating the Deliverables.
2.6 Client System means the Client’s computer system which is not on the Server and links with the Website or Client Website;
2.7 Client Website means a website and any associated “back office” functionality hosted for the Client by Markooo on the Server;
2.8 Copyright means the intellectual property rights in original creative works anywhere in the World
2.9 Deliverables means the work product specified in the Proposal to be delivered by Markooo to Client as specified in the Proposal.
2.10 Markooo Tools means all design tools developed and/or used by Markooo in performing the Services, including pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools.
2.11 Markooo. means MarkoM Limited a company registered in Serbia with company number 05445656 whose registered office is at Dr. Svetislava Kasapinovica, Novi Sad 21000, Serbia.
2.12 Fees means the charges for the Services.
2.13 Final Deliverables means the final versions of Deliverables provided by Markooo and accepted by Client.
2.14 Final Works means all creative content developed by Markooo, or commissioned by Markooo, exclusively for the Project and incorporated in the Final Deliverables, including, but not limited to, any and all visual elements, graphic design, illustration, animation, motion design, audio-visual works, sounds, typographic treatments and text, modifications to Client Content, and Markooo’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials
2.15 Initial Period means the initial hosting period for the Client Website as set out in the Proposal.
2.16 Preliminary Works means all creative content including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Markooo and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Works.
2.17 Project means the creation of the Deliverables.
2.18 Proposal means the costed proposal for services to be provided by Markooo accepted in writing by the Client.
2.19 Server means a dedicated server (including a virtual server) made available by Markooo for use by the Client in connection with the Services from time to time
2.20 Services means all services to be provided to Client by Markooo as described and defined in the Proposal.
2.21 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustrations.
2.22 Trademarks means trade names, words, symbols, designs, logos or other devices or designs provided by the Client (or a logo for the same designed for the Client by Markooo) and used in the Final Deliverables to designate the origin or source of the goods or services of Client.
2.23 Website means the software construct, content and visual elements and design as described in the Proposal and/or created by Markooo for the Client.
2.24 Working Files means all underlying work product and digital files utilized by Markooo to create the Preliminary Works and Final Works other than the material comprising the Final Deliverables.
2.25 Writing and writing include email and written instructions uploaded to a website.
3.1 Markooo shall perform the services set out in the Proposal.
4.1 Fees: Client agrees to pay Markooo the fees listed in the Project Proposal, including all taxes.
4.2 Expenses: Client will pay Markooo expenses, including but not limited to: (a) Incidental and out-of-pocket expenses at cost plus Markooo’s standard markup of 20 percent; (b) travel expenses, other than normal commuting, but including airfare and rental vehicles, with client approval.
4.3 Additional Costs: Pricing in the Project Proposal includes only Markooo fees. Any other costs, such as hosting or licensing, will be billed to Client if and when required.
4.4 Hosting Website: Markooo will host the Website on Markooo’s web space while the Project is under construction. If the Website is not completed by the completion date listed in the Proposal, and the delay is not caused by Markooo, Client agrees to pay Markooo $40.00 per month for hosting until the Website is moved to its intended destination.
5.1 Payment Schedule: Payment is due when Markooo completes each milestone as listed in the Proposal, and Client accepts the Deliverables for that milestone.
5.2 Invoices: All invoices are payable within 10 days of receipt. Invoices shall list any expenses and additional costs as separate items. Unless otherwise agreed in writing the Project will not proceed to the next following milestone until all invoices applicable to all prior milestones have been paid in full.
5.3 Withholding Delivery/Live Website: Markooo may withhold delivery and transfer of ownership of any current work and/or prevent the Website from going live whilst any accounts are overdue for payment.
6.1 Change Request: If Client wants to change the scope of the Project Client shall send Markooo a written “Change Order” describing the requested changes in detail. Within seven (7) days of receiving a Change Order, Markooo will respond with a statement setting out Markooo’s availability, additional fees, changes to delivery dates or milestones, and any required modification to the Agreement. Markooo will be entitled to charge for evaluating each Change Order at its standard rates.
6.2 Acceptance/Rejection: Client will have seven (7) days to respond in writing accepting or rejecting the new proposal. If Client rejects the proposal, Markooo will not be obligated to perform any services beyond those in the original Agreement.
6.3 Markooo’s response may be for a change to the Project price or for the additional work to be carried out on a time and materials basis.
6.4 Markooo shall not begin work on the revised services until it receives written acceptance of its proposals for the change.
7.1 Timing: Markooo will use commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Markooo. Markooo shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Markooo’s ability to meet any and all times is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of the Agreement by Markooo.
7.2 Client Delays. Any delay by Client will result in a day-for-day extension of the due date for all Deliverables.
8.1 Approval Periods: Client, within seven days of receipt of each Deliverable, shall notify Markooo, in writing, of any failure of such Deliverable to comply with the specifications or requirements in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment and Markooo shall be entitled to request written clarification of any concern, objection or correction. Markooo will correct any errors in a commercially timely manner. Any changes or amendments shall be subject to the terms of the Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
9.1 Client shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision making with parties other than Markooo; (b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; (c) final proof-reading (and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors); and (d) ensuring that any information and claims forming part of Client Content are accurate, legal and conform to applicable standards in Client’s industry.
9.2 Client shall co-operate, and ensure that Client’s staff and contractors cooperate with Markooo’s staff and contractors and conduct itself at all times so as to ease the process of the Project.
10.1 Markooo shall be entitled to place designer/developer accreditation, as a hyperlink or otherwise, in the form, size and location as reasonably required by Markooo on each page of the Website and for it to remain there whilst the Website is in use by Client.
10.2 Markooo retains the right to reproduce, publish and display any elements of the Website in Markooo’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of such elements to the extent created by Markooo.
11.1 Markooo shall be allowed to use third party independent contractors in connection with the Services (“Sub-contractors”). Markooo shall remain fully responsible for Sub-contractors’ compliance with this Agreement.
11.2 During the term of the Agreement, and for a period of six (6) months after expiration or termination of the Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, or any other basis, any Markooo employee or Subcontractor of Markooo, whether or not said person has been assigned to perform tasks under the Agreement. In the event such employment, engagement or consultation occurs, Markooo shall be entitled to receive from Client a commission of either (a) 50 percent of said person’s starting salary with Client if employed, or (b) 50 percent of any fees paid to said person in the twelve months following the commencement of any engagement if otherwise engaged. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the person performed services for Client.
12.1 Client represents, warrants and covenants to Markooo that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of Client’s knowledge, the Client Content is accurate, legal, conforms to ethical standards of the Client’s industry, does not infringe the rights of any third party, and use of the Client Content or any Trademarks in connection with the Project will not violate the rights of any third parties, and (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials
12.2 Markooo represents, warrants and covenants to Client that Markooo will provide the Services with reasonable care and skill and that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Markooo and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Markooo, Markooo shall have secured agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Markooo to grant usage rights to the Client as provided in this Agreement, and (iii) to the best of Markooo’s knowledge, the Final Works (but excluding any element of Client Content and any Trademarks) do not infringe the rights of any third party, and use of same in connection with the Project and as anticipated by the Proposal or the Agreement will not violate the rights of any third parties.
13.1 Upon completion of the Services, and expressly conditional upon full payment of all fees and costs due, Markooo hereby grants to Client a non-exclusive, perpetual and worldwide right and license to use, reproduce and display, sub-licence and adapt the Final Works as part of the Website for the purpose of promoting the business, product(s) or service(s) as anticipated by the Proposal. All other rights including Copyrights, save for Copyright in any Trademarks, are retained by Markooo.
13.2 The rights granted to Client are for usage of the Final Works as part of the Website only. Client may not separately use any part of the Website without Markooo’s consent.
13.3 Upon completion of the Services, and expressly conditional upon full payment of all fees and costs due, Markooo assigns to Client all of Markooo’s Copyright, in and to Trademarks created by Markooo as part of the Services. Markooo shall at Client’s request and cost execute any documents reasonably requested by Client to evidence such assignment. Client acknowledges its responsibility to satisfy itself that the Trademarks do not infringe the registered or common law trademarks of any third party and Client shall indemnify, save and hold harmless Markooo from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party alleging trademark infringement, or arising out of Client’s failure to obtain trademark clearance or permissions, for use of Trademarks.
13.4 Intellectual property rights in Third Party Materials are normally owned by the respective third parties. Markooo shall inform Client of all Third Party Materials to be procured by Markooo that Client may need to license at Client’s own expense, and unless otherwise arranged by Client, Markooo shall obtain a license for Client to use the Third Party Materials. Client shall indemnify, save and hold harmless Markooo from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand or action by a third party arising out of Client’s failure to obtain any necessary licence release or permission which it undertook to obtain or claimed to possess with respect to materials included in the Final Works at Client’s request.
13.5 Client Content, including pre-existing Trademarks, and any intellectual property therein shall remain the sole property of Client or its respective licensors. Client hereby grants to Markooo a non-exclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Markooo’s performance of the Services and promotional uses of the Deliverables as authorized in this Agreement.
14.1 Markooo retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works and Working Files, and Client shall return to Markooo all Preliminary Works and Working Files in Client’s possession within thirty (30) days of completion of the Services.
14.2 All Markooo Tools are and shall remain the exclusive property of Markooo. Markooo grants Client a non-exclusive, non- transferable, perpetual, worldwide license to use the Markooo Tools solely to the extent necessary to enable use of the Website.
14.3 Markooo retains Copyright ownership in any original Graphic Design comprising Final Works, including all rights to display or sell the same. Client shall return all original Graphic Design to Markooo within thirty (30) days of completion of the Services.
15.1 During the first two (2) months following termination of the Agreement (“Warranty Period”), Markooo shall provide up to four (4) hours of support services at no additional cost to Client. Support services means commercially reasonable technical support and assistance to maintain and update the Website including correcting any errors. Requests for additional support will be billed on a time and materials basis at Markooo’s standard rate.
15.2 The services in the Warranty Period do not include enhancements to the Project or other services outside the scope of the Proposal.
16.1 During the Warranty Period, Client may request that Markooo develop enhancements to the Website. Markooo shall use commercially reasonable efforts to prioritise Markooo’s resources to create such enhancements. Client understands Markooo may have pre-existing obligations that may delay requested enhancements. Markooo shall provide any enhancements on a time and materials basis at Markooo’s standard rates.
17.1 Unless the Agreement is terminated earlier in accordance with its terms, Markooo will provide the Services until they are complete.
17.2 Markooo may immediately terminate the Agreement by notice in writing to the Client if the Client fails to pay to Markooo any sum due under the Agreement by the due date for payment.
17.2.1 Either party may terminate the Agreement forthwith by notice in writing to the other if the other party:
17.2.2 is in material breach of the Agreement and fails (where the breach is capable of remedy) to remedy the breach within 21 days of the receipt of a request in writing to remedy the breach, such request setting out the breach and indicating that failure to remedy the breach may result in termination of the Agreement;
17.2.3 is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
17.2.4 has a receiver, manager, administrator or administrative receiver appointed over all or any parts of its undertaking, assets or income, has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order; or
17.2.5 has ceased or threatened to cease to trade.
19.1 The following provisions of the terms relevant to web design services are equally relevant to Graphic Design: Clauses 3, 4.1, 4.2, 6, 7, 8, 9.2, 11, 17, 18.
20.1Additional Costs: Pricing in the Project Proposal includes only Markooo fees. Any other costs, such as location hire or models, will be billed to Client if and when required.
20.2 Payment: Payment is due when Markooo completes each milestone as listed in the Proposal, and Client accepts the Deliverables for that milestone. If there are no milestones then payment is due on delivery of the relevant Deliverable(s).
20.3 Invoices: All invoices are payable within 10 days of receipt. Invoices shall list any expenses and additional costs as separate items. Unless otherwise agreed in writing the Project will not proceed to the next following milestone (if any) until all invoices applicable to all prior milestones (if any) have been paid in full.
20.4 Withholding Delivery: Markooo may withhold delivery of any current work whilst any accounts are overdue for payment.
21.1 Client shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision making with parties other than Markooo; (b) provision of locations and subjects; (c) approval of work in progress.
22.1 Markooo retains the right to reproduce, publish and display any elements of the Final Works in Markooo’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of such elements to the extent created by Markooo.
23.1 Markooo represents, warrants and covenants to Client that Markooo will provide the Services with reasonable care and skill and that the Final Deliverables shall be the original work of Markooo and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Markooo, Markooo shall have secured agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Markooo to grant usage rights to the Client as provided in this Agreement, and (iii) to the best of Markooo’s knowledge, the Final Works (but excluding any element of Client Content and any Trademarks) do not infringe the rights of any third party, and use of same in connection with the Project and as anticipated by the Proposal or the Agreement will not violate the rights of any third parties.
24.1 Upon completion of the Services, and expressly conditional upon full payment of all fees and costs due, Markooo hereby grants to Client a non-exclusive, perpetual and worldwide right and license to use, reproduce and display the Final Works for the purpose of promoting the business, product(s) or service(s) as anticipated by the Proposal. All other rights including Copyrights, are retained by Markooo.
25.1 Markooo retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works and Working Files, and Client shall return to Markooo all Preliminary Works and Working Files in Client’s possession within thirty (30) days of completion of the Services.
25.2 Markooo retains Copyright in and ownership of any original Graphic Design negatives forming part of the Final Works, including all rights to display or sell the same. Client shall return all original Graphic Design to Markooo within thirty (30) days of completion of the Services.
26.1 In consideration of the payment by the Client of the Fees, Markooo agrees to provide the Services (host the Client Website on a server based within the European Economic Area) to the Client on the terms of the Agreement.
26.2 Markooo will use its reasonable endeavors to commence the Services in accordance with any timescale set out in the Proposal or otherwise agreed with the Client, provided that but Markooo shall not be liable to the Client for any failure to meet any such timescale.
26.3 Markooo reserves the right, at any time and from time to time to change the services by, for example, changing the Server or the type or location of the server (within the EEA) provided only that such changes do not have a materially adverse effect on the quality of the Services.
26.4 The Client shall have no right of ownership over or physical access to the Server.
The Client shall:
27.1 Immediately notify Markooo on becoming aware of any unauthorised use or incursion into the Client Website;
27.2 remove or prevent access to any material hosted on the Client Website which causes or is likely to cause the Client to be in breach of the Agreement;
27.3 ensure that it has all necessary consents, permissions and licenses to make use of the Client Website including registration and appropriate consents and approvals under the Data Protection Act 1998 and/or the General Data Protection Regulation;
27.4 ensure that all material or data placed by the Client on the Client Website or communicated through such site is checked for viruses and other harmful code and has appropriate security patches applied;
27.5 be entirely liable for all activities conducted and charges incurred on or through the Client Website by persons using under the Client’s passwords and user names whether authorised by the Client or not, and the Client further acknowledges that Markooo shall not be liable for any loss (whether financial or otherwise) arising from the Client’s inability to comply with the Agreement;
27.6 comply with any security policy notified to the Client from time to time by Markooo and, in particular, ensure that all passwords and user names provided to the Client by Markooo are at all times kept confidential, used properly and not disclosed to unauthorised people. If the Client has any reason to believe that any password or user name has become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way or of any other breach of security then the Client will inform Markooo immediately;
27.7 promptly provide to Markooo and/or Markooo’s consultants, employees and agents such information and assistance as they may reasonably require in order to be able to provide the Services and deal with them courteously and co-operatively; and
27.8 procure all necessary rights from third parties (including intellectual property licences of computer software and website content) which are from time to time required in order for Markooo to be able legally to provide the Services to the Client.
27.9 use the Client Website, or allow it to be used, for any unlawful or fraudulent purpose or for the publication, distribution, copying, linking to, issue or display of any unlawful material (including any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights (including but not limited to intellectual property rights) of any third party or which is or encourages criminal acts or contains any virus, worm, trojan horse or other harmful code) under English law or the laws of the Client’s country of domicile or any other place where the results of such purpose or the material in question are likely to be be accessed;
27.10 use the Client Website, or allow it to be used, for the publication, linking to, issue or display of any material which in the absolute discretion of Markooo may harm or bring into disrepute Markooo or any of Markooo’s associated companies, suppliers or clients.
27.11 use the Client Website, or allow it to be used, in a way which constitutes harassment or is in breach of generally accepted standards and codes of practice for use of the internet including but not limited to refraining from (i) sending bulk email (whether opt-in, unsolicited or otherwise), (ii) mail bombing and (iii) impersonating another person, organisation or website.
27.12 use any service provided by any third party (including an internet web site and/or email) for the publication, linking to, issue or display of any material which refers to an internet web site hosted by Markooo or any products or services offered by Markooo from time to time without Markooo’s prior written consent; or
27.13 use the Client Website in any way which in the reasonable opinion of Markooo is excessively wasteful of resource within the Server.
28.1 Without prejudice to its other rights and remedies, Markooo may suspend the provision of the whole or any part of the Services (temporarily or permanently) thus rendering the Client Website inoperative and will have no liability to the Client for such suspension on the occurrence of any of the following events:
28.1.1 any scheduled or unscheduled but necessary upgrade or maintenance of any relevant IT system used by Markooo;
28.1.2 any requirement of any competent authority which affects Markooo’s provision of the Services;
28.1.3 if the Client fails to pay any Fees or any other sums owing to the Markooo by the Client when they fall due;
28.1.4 if in Markooo’s opinion it is necessary to do so to avert damage or loss to Markooo or its other clients;
28.1.5 termination of the Agreement;
28.1.6 if the bandwidth, hard disk drive or computer memory used by the Client in relation to the Client Website exceeds any agreed or stipulated level and Markooo determines in its sole discretion that suspension is necessary to protect all or any internet solutions then provided by Markooo;
28.1.7 any failure, deficiency or incompatibility in the Client System including but not limited to hardware, server corruption and security breaches which has or may have a deleterious effect on the provision of services by Markooo to other clients; or
28.1.8 any failure by the Client, or any of the Client’s employees, agents or other authorized representatives, to adhere to any of the provisions outlined in condition 27.
28.2 In the event that Markooo suspends provision of the Services in accordance with condition
28.1 Markooo will only be obliged to recommence provision during Business Hours and if the suspension was pursuant to 28.1.3 once the Client has paid all relevant outstanding sums in cleared funds.
29.1 If in Markooo’s opinion, the Client is in breach of any of the provisions contained in condition 27 and as a consequence the Server contains unlawful content or (irrespective of any such breach) the Client Website is being used in a way that has the effect of gathering content that would be generally regarded as being undesirable, Markooo may amend or remove any such content appearing on the Client Website or in the Server and may notify any relevant public authority (governmental or otherwise including the police or other enforcement authority) of any such material where Markooo deems such notification to be appropriate.
30.1 Subject to condition 30.2 the Fees are payable by the Client to Markooo on the basis set out in the Proposal.
30.2 Markooo shall be entitled to amend the Fees by giving the Client not less than 60 days’ written notice, such notice to expire at the end of the Initial Period or any anniversary of that date.
31.1 Unless the Agreement is terminated earlier in accordance with its terms, Markooo will provide the Services for the Initial Period and will continue to do so thereafter until terminated by either party serving not less than 30 days’ written notice on the other party expiring at any time after the end of the Initial Period.
31.2 Markooo may immediately terminate the Agreement by notice in writing to the Client if the Client fails to pay to Markooo any sum due under the Agreement by the due date for payment.
31.3 Either party may terminate the Agreement forthwith by notice in writing to the other if the other party:
31.3.1 is in material breach of the Agreement and fails (where the breach is capable of remedy) to remedy the breach within 21 days of the receipt of a request in writing to remedy the breach, such request setting out the breach and indicating that failure to remedy the breach may result in termination of the Agreement;
31.3.2 is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
31.3.3 has a receiver, manager, administrator or administrative receiver appointed over all or any parts of its undertaking, assets or income, has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order; or
31.3.4 has ceased or threatened to cease to trade.
32.1 Termination of the Agreement shall be without prejudice to the rights and duties of either party accrued prior to termination.
32.2 Those parts of the Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
32.3 Markooo may without notice remove the Client’s data from the Server following termination thus “turning off” the Client Website.
32.4 The Client will forthwith pay all outstanding invoices.
32.5 Each party shall return or, at the disclosing party’s request, destroy any confidential information of the other party.
32.6 Once the Client has discharged all its obligations to Markooo, Markooo shall for payment in advance at its normal time and materials rates create and provide to Client a backup of the Client Website suitable for deployment on another server provided that the other server and the software on it are compatible with the Client Website.
33.1 The Services are provided by Markooo to the Client on an “as is” and “as available” basis and, except where otherwise stated in the Agreement, no warranty or representation (whether express or implied) of any kind is given by Markooo in connection with the Agreement, including but not limited to any warranty as to satisfactory quality and fitness for a particular purpose of any Deliverables. In particular, Markooo gives no warranty and makes no representation that:
33.1.1 the Services will meet the Client’s requirements;
33.1.2 the hosting Services will be provided on an uninterrupted, timely, secure or error-free basis or without failure;
33.2 Markooo warrants that it will provide the Services with reasonable care and skill and within a reasonable time.
33.3 Markooo represents that it shall use reasonable endeavours to provide hosting Services continuously except during scheduled maintenance of the Server and that should Markooo become aware of a Server fault or any error or interruption affecting the hosting Services it will as soon as practicably possible during Business Hours repair the Server or provide an alternative server as a replacement.
34.1 The provisions of this condition 34 set out the entire liability of the Markooo (including any liability for the acts or omissions of its consultants, employees, agents and authorized representatives) to the Client in respect of:
34.1.1 any breach of the Agreement; and
34.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Agreement.
34.2 Nothing in the Agreement shall exclude or limit the liability of Markooo for death or personal injury caused by the negligence of Markooo, fraud or a breach of section 12 of the Sale of Goods Act 1979.
34.3 Subject to condition 34.2 the liability of Markooo in contract, tort (including negligence or breach of statutory duty), misrepresentation (other than fraudulent misrepresentation) or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall:
34.3.1 not exceed the sum of $2,000,000 (two million dollars) per claim or series of claims arising out of the same event for loss of or damage to tangible property; and
34.3.2 not exceed a sum equal to 125% of all sums paid by the Client to Markooo pursuant to the relevant Agreement (excluding VAT and expenses) during the 12 month period immediately preceding the claim less any amounts paid by Markooo in the same period pursuant to any claim under or in connection with the same Agreement; and
34.3.3 not include loss of profit, loss of business, loss of revenue, loss of contract, loss of goodwill (whether direct or indirect losses), or any indirect or consequential loss or damage, costs, expenses or any other claims for consequential compensation and whether or not caused by the negligence of Markooo or its employees, agents or authorised representatives even if , Markooo had been made aware of the possibility of such losses arising.
34.4 The Client acknowledges and agrees that Markooo shall not be liable for:
34.4.1 Interruptions of service or down-time of the Server
34.4.2 Non-receipt or misrouting of email or for any other failure of email.
34.4.3 Loss or damage to any data stored on the Server or any backup medium.
34.4.4 Failure to correctly transfer any data, content or settings present on the Server where the Client Website is transferred to a different server.
34.4.5 Any claim unless the Client notifies Markooo in writing of the claim within 10 days of the Client becoming aware of the facts or circumstances giving rise to the claim.
34.4.6 Failure of the Website to comply with relevant legislation in any jurisdiction.
34.4.7 Any act or omission carried out in accordance with Client’s instructions.
34.4.8 Markooo’s failure to investigate third party rights where it is the responsibility of Client to obtain clearance.
35.1 Neither party is under any liability to the other party in respect of anything which, apart from this provision, may constitute a breach of the Agreement arising by reason of force majeure which means, in relation to either party, acts of God, acts of any governmental or supranational authority, war or national emergency, riots, civil commotion, fire, network failure, systems fault, unauthorised use of or access to any IT system owned, used or accessed by Markooo or the Client (including but not limited to hacking), explosion, flood, epidemic, lock-outs (whether or not by that party), strikes and other industrial disputes (in each case, whether or not relating to that party’s workforce), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials and currency restrictions, or by any act, event, omission or accident beyond that party’s reasonable control.
35.2 Any delay caused by conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day for day extension of any dates for performance. Each party shall use reasonable efforts to notify the other party, in writing, of a delay.
36.1 Client agrees to indemnify, save and hold harmless Markooo against and from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s obligations, representations or warranties under the Agreement.
36.2 Markooo shall promptly notify Client in writing of any third party claim or suit. Client, having adequately secured Markooo against any costs, shall have the right to fully control the defence and any settlement of such claim or suit.
36.3 Markooo agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party that elements of any Deliverables which Markooo claims are its original work breach the third party’s Copyright, and it is determined that such infringement has occurred. In the case of a third party lawsuit or proceeding based on such a claim Markooo may at its own expense, replace any infringing content with non- infringing content.
36.4 Client shall promptly notify Markooo in writing of any third party claim or suit. Markooo, having adequately secured Client against any costs, shall have the right to fully control the defense and any settlement of such claim or suit.
37.1 Any sums payable by the Client to Markooo under the Agreement are exclusive of value added tax or any similar taxes, levies or duties, which will be added to such sums and be payable by the Client at the prevailing rate.
37.2 All sums payable to Markooo under the Agreement shall be paid by the Client in full with no set off or deduction.
37.3 A monthly service fee of 1.5 percent, or the maximum allowed under the Late Payment of Commercial Debts (Interest) Act 1998, is payable on all overdue balances.
37.4 Payments will be credited to late payments first, then to unpaid balances.
37.5 Client shall pay all collection or legal fees caused by late payments.
37.6 All grants of any license to use or agreements to transfer ownership of any intellectual property rights under this Agreement are conditional on full payment being made.
38.1 Client’s “Confidential Information” means information provided to Markooo concerning the business of Client that Markooo should reasonably believe to be confidential. Markooo’s “Confidential Information” means any Preliminary Works provided to Client. Any other material considered confidential by either party shall be designated as confidential before being provided.
38.2 Confidential Information shall not be disclosed to third parties and shall only used as needed to perform this Agreement.
38.3 The restriction in clause 38.2 shall not apply to any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure
39.1 The Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of the Agreement. Client agrees that it has not relied on any warranty or representation that is not set out in these terms and conditions or in the Proposal or in any written agreement amending either these terms and conditions or the Proposal.
39.2 In the event of there being any conflict or inconsistency between the Proposal and these terms and conditions, the Proposal shall take precedence.
39.3 No variation or amendment to the Agreement shall be effective unless agreed in writing.
39.4 The Client shall not assign the benefit or delegate the burden of the Agreement or sub-license any of its rights under the Agreement without Markooo’s prior written consent.
39.5 If any provision of the Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect.
39.6 Failure or delay by either party in enforcing or partially enforcing any provision of the Agreement will not be construed as a waiver of any of its rights under the Agreement.
39.7 Nothing in the Agreement confers on any third party any benefit or any right to enforce any provision of the Agreement.
39.8 Any waiver by either party of any breach of, or any default under, any provision of the Agreement by the other party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Agreement.
39.9 Any notice required to be given in connection with the Agreement shall be in writing and shall be sent by fax, email, posted or delivered by hand to the Registered Offices of the parties or in the event that there is no registered office, their principal place of business. Such notice shall be deemed to have been given when served if delivered by hand. If posted first class it shall be deemed given 48 hours following posting and if sent by fax or email at the time transmission was fully completed.
39.10 The formation, existence, construction, performance, validity and all aspects of the Agreement shall be governed by English law and the parties submit to the jurisdiction of the English courts.