Application of Terms

1. These Terms are the only terms upon with Wrapped is prepared to deal with the Customer and they shall govern the Contract to the entire exclusion of all other terms or conditions (subject to Clause 2.2).
2. In accordance with Clause 19 no terms or conditions endorsed upon, delivered with or referred to elsewhere in any written or verbal communications between Wrapped and the Customer will form part of the contract and the Customer waives any right to which it otherwise might have to rely on such terms or conditions.
3. In the event of a conflict between any express written terms of the Contract and these Terms, the written terms of the Contract shall prevail.

Appointment

1. Wrapped shall deliver, and the Customer shall accept, the Goods and/or Services in accordance with and subject to these Terms;
2. The Goods and Services are personal to the Customer and all written reports or other communications shall only be for the benefit of the Customer and not passed to any third party (save for any nominated sub-contractors in accordance with Clause 14).

Customer’s Obligations

1. The Customer shall do all such things that the Contract provides are to be done by the Customer or which Wrapped shall reasonably require in order to assist Wrapped in delivering the Goods and/or performing the Services.
2. The Customer shall obtain and maintain all necessary licences and consents and comply with all relevant legislation (including but not limited to Data Protection Legislation). Wrapped will not be responsible for any failure by the Customer to keep such licences and consents up to date, or any failure by the Customer to comply with relevant legislation.
3. If Wrapped’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 (“the Default”):
   1. Without limiting or affecting any other right or remedy available to it, Wrapped shall have the right to suspend performance of the Contract until the Customer remedies the Default to relieve it from the performance of any of its obligation in each case to the extent the Default prevents or delays Wrapped’s performance of any of its obligations;
   2. Wrapped shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Wrapped’s failure or delay to perform any of its obligations as set out in this clause 4; and
   3. The Customer shall reimburse Wrapped on written demand for any costs or losses sustained or incurred by Wrapped arising directly or indirectly from the Default.

Performance

1. Wrapped shall use reasonable endeavours to deliver the Goods and/or perform the Services by the time specified in the Contract or if no such time is agreed, then by the time as may be agreed from time to time by Wrapped and the Customer in writing.  If no time is so specified, Wrapped shall deliver the Goods or perform the Services within a reasonable time.
2. If Wrapped’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, Wrapped shall be allowed an extension of time to perform its obligations.
3. Wrapped shall not be liable for the consequences of any delay in delivering the Goods or performing the Services.

Charges and Payment

1. Wrapped shall not be liable for the consequences of any delay in delivering the Goods or performing the Services.
2. The price shall be the price set out in the Contract.
3. Wrapped shall be entitled to charge the Additional Charges to be agreed with the Customer in advance of being incurred.
4. Wrapped has the right to review all payment arrangements under its Contracts with the Customer on an monthly basis. If Wrapped deems that the amount paid by the Customer under the Contract should be increased (“an Increased Payment”), then Wrapped will notify the customer in writing.
5. If the monthly payment is increased in accordance with clause 6.4 above the Customer has the right to refuse to pay the Increased Payment. The Customer must inform Wrapped within 14 days of being notified of the Increased Payment that it does not agree to the Increased Payment.
6. Wrapped and/or the Customer have the right to terminate the Contract if an agreement cannot be reached in relation to the Increased Payment within 14 days of Wrapped being notified by the Customer that it disputes the Increased Payment.

Revisions to Contracts

1. Either party may propose changes to the Estimate or Scope of Work of the Services and/or the Goods to be delivered but no proposed changes shall come into effect until a Revised Contract has been agreed by both parties.
2. If Wrapped wishes to make a change to the Goods and/or Services it shall provide a draft Revised Contract to the Customer.
3. If the Customer wishes to make a change to the Goods and/or Services it shall:
   1. Notify Wrapped and provide as much details as Wrapped reasonably requires of the proposed changes (including the timing of the proposed changes); and
   2. Wrapped shall, as soon as reasonably practicable after receiving the information at clause 7.3.1 above, provide a draft Revised Contract to the Customer.
4. Wrapped may charge for the time it spends on preparing and negotiating the Revised Contract in accordance with the Additional Charges.

Intellectual Property Rights

1. Wrapped shall retain ownership of all Intellectual Property Rights in the Bespoke Material excluding the Materials;
2. In consideration for the receipt by Wrapped of all monies payable to Wrapped by the Customer, Wrapped assigns all Intellectual Property Rights in the Bespoke Material to the Customer.
3. The Customer grants to Wrapped a worldwide, royalty-free, non-exclusive, non-transferable licence for the Wrapped to use the Materials only for the purpose of operating, maintain, designing and developing the Goods and/or Services for the Customer.
4. The Customer warrants that it owns the Intellectual Property Rights in the Materials and that it has the right to grant the licence in clause 8.3.
5. In the event that it should transpire that the Customer does not properly own the Intellectual Property Rights in the Materials set out at clause 8.3, the Customer shall indemnify Wrapped in full against all costs, expenses, damages and losses (including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by Wrapped as a result of or in connection with any claim brought against Wrapped, 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 Materials.
6. Wrapped grants to the Customer a worldwide, royalty-free, non-exclusive, non-transferable licence for the Customer to use the Software only for the purpose of operating, maintain, designing and developing the Goods and/or Services by Wrapped for the Customer.
7. The licence in clause 8.2 and 8.6 shall terminate if any of these Terms are breached by the Customer; or if the Customer enters into any compromise or arrangement with its creditors, commits any act of bankruptcy, or if an order is made or an effective resolution is passed for its winding up (except for the purpose of amalgamation or reconstruction as a solvent company) or if a petition is presented to the court, or if a receiver and/or manager, receiver, administrative receiver is appointed in respect of the whole or any part of the Customer’s undertaking or assets.
8. Unless otherwise agreed, Wrapped’s legal costs in preparing any agreement with the customer to which these Terms relate shall be borne by the Customer.

Data Protection and Data Processing

1. The Customer and Wrapped acknowledge that for the purposes of the Data Protection Act 1998 , the Customer is the Data Controller and Wrapped is the Data Processor in respect of any Personal Data. The definitions in the Terms will be superceded and replaced by the General Data Protection Regulations where necessary and appropriate.
2. Wrapped shall process the Personal Data only in accordance with the Customer’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Customer.
3. Wrapped shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.
4. Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
5. Wrapped warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
   1. take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
      1. the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
      2. the nature of the data to be protected; and
      3. take reasonable steps to ensure compliance with those measures.
6. Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this clause subject to the provisions of clause 11 below.
7. The Customer acknowledges that Wrapped is reliant on the Customer for direction as to the extent to which Wrapped is entitled to use and process the Personal Data. Consequently, Wrapped will not be liable for any claim brought by a Data Subject arising from any action or omission by Wrapped, to the extent that such action or omission resulted directly from the Customer’s instructions.
8. Wrapped may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractor’s contract:
   1. is on terms which are substantially the same as those set out in this agreement; and
   2. terminates automatically on termination of this agreement for any reason.

Third Party Rights

1. Unless expressly agreed otherwise in the Contract, the Customer shall be responsible for obtaining permissions in respect of third party copyright works, trade marks, designs or other intellectual property supplied by the Customer to Wrapped or directly placed by the Customer using the Generic Software under the control of the Customer under the Contract.
2. Unless expressly agreed otherwise in the Contract, Wrapped shall be responsible for obtaining clearances in respect of third party copyright works, trade marks, designs or other intellectual property supplied by Wrapped to the Customer under the Contract.

Warranty and Limitation of Liability

1. The Contract will set out the agreement between Wrapped and the Customer for the length of warranty period and the amount of revisions in relation to the Goods delivered and/or the Services performed.
2. In the absence of an agreement in accordance with Clause 11.1, Wrapped will support the Customer for 6 weeks following delivery of the Goods and/or completion of the Services in relation to unforeseen fixes that hinder functionality to the delivered Goods or performed Services.
3. Wrapped shall be entitled to charge the Additional Amounts for any work over and above those set out in the Contract or clause 11.2 above.
4. In the absence of an agreement as to the Additional Charges, Wrapped shall be entitled to charge a reasonable amount for the additional work carried out in relation to clause 11.2 on behalf of the Customer.
5. Wrapped undertakes to use reasonable skill and care in delivering the Goods or performing the Services.
6. Should additions/modifications be made to the Goods and/or Services by the Customer (or any agent instructed by the Customer) errors occurring in other parts/areas of the Goods and/or Services deemed as a consequence of the modifications, Wrapped will not be liable for any loss whatsoever or costs associated with such errors.
7. Apart from the foregoing, Wrapped makes no representations and gives no warranties of any kinds with respect to the Goods or the Services and all such warranties including those in Sales of Goods legislation are excluded to the fullest extent permissible by law.
8. Wrapped shall not be liable either before, during or after the delivery of the Goods or performance of the Services in any way for any losses, damages, costs or expenses, or for any loss of revenue, profit, goodwill or any consequential or indirect or special loss or damage arising out of the provision of the Goods or Services, or of any error defect therein, or of the delivery delayed delivery or non-delivery of the Goods or the performance, delayed performance or non-performance of the Services.
9. Any liability not excluded by clause 11.8 (or any exclusion of liability which is held by a court of competent jurisdiction to be invalid or unreasonable) shall be limited to a maximum aggregate liability of 100% of the value of the Contract.  Nothing in this clause shall exclude liability for death or personal injury arising from the negligence of Wrapped or its employees or agents (including sub-contractors), or other liability which it is prohibited from excluding at law.

Duration

1. The Contract shall come into effect when Wrapped commences work on behalf of the Customer and shall (where applicable) continue in accordance with terms specified in the Contract, or until the Goods have been delivered or the Services have been performed, unless terminated earlier pursuant to clause 13.

Termination

1. Either party (“the Terminating Party”) shall have the right at any time by giving notice in writing to the other party to terminate the Contract forthwith if:
   1. The other party commits a material breach of any of these Terms, and has failed to remedy it within 30 days of receipt of a notice from the Terminating Party requiring the other party to do so;
   2. any distress, execution or other process is levied upon any of the assets of the other party; or
   3. the other party enters into any compromise or arrangement with its creditors, commits any act of bankruptcy or if an order is made or an effective resolution is passed for its winding up (except for the purposes of amalgamation or reconstruction as a solvent company) or if a petition is presented to court, or if a receiver and/or manager, receiver, administrative receiver is appointed in respect of the whole or any part of the other party’s undertaking or assets.
2. The termination of the Contract, however arising, will be without prejudice to the rights and duties of the parties accrued prior to termination. The clauses which expressly or impliedly have effect after termination.

Assignment and Sub-Contracting

2. The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of Wrapped.
3. Wrapped may assign or sub-contract the Contract or any part of it to any person, firm or company without notice to the Customer.

Confidentiality

1. Each party agrees and undertakes that it will keep confidential, and will not use for its own purposes nor without the prior written consent of the other, disclose to any third party, any information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party unless such information is public knowledge or already known to such party at the time of disclosure or subsequently becomes public knowledge other than by breach of these Terms or comes lawfully into the possession of such party from a third party.
2. The provisions of this clause shall remain in force and effect notwithstanding any termination of the Contract.
3. All Wrapped documentation supplied to the customer remains “Commercial in confidence” and should not be copied or distributed for reasons beyond the project.

Publicity and Acknowledgments

1. Wrapped shall be entitled to publicise its role in delivering the Goods and/or performing the Services and shall be entitled to use the Materials and Bespoke Material for that purpose.
2. The Customer shall ensure that Wrapped’s contribution in performing the Contract and Wrapped’s copyright (if any) are properly acknowledged.
3. For the avoidance of doubt, Wrapped’s statutory right to be identified as the author of any copyrightable works created in undertaking the Contract under sections 77-79 of the Copyright, Designs and Patents Act 1988 or any amendment or re-enactment thereof is asserted.
4. Wrapped reserve the right to feature a credit link on the website to any website owned by Wrapped to publicise who created the project, unless otherwise agreed in the Contract. Wrapped may charge a commission to remove such credit.

General

1. If any provision of the Contract 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 Contract and the remainder of such provision shall continue in full force and effect.
2. 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 breach or default. 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.
3. No person shall acquire any rights under the Contract by virtue of the Contracts (Rights of Third Parties) Act 1999, save that Wrapped may assign or sub contract the Contract or any part of it to any person, firm or company as per clause 14 above.
4. The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.

Fair Usage

1. Wrapped may refer to “unlimited” with regards to bandwidth allowance, number of design revisions, hosting specifics, email specifics, ecommerce specifics, or anywhere within our websites, our marketing publications, our quotations, the Contract, or our specification documents. The term “unlimited” is to imply “reasonable” and is subject to reasonable use.

Any requests that;

• • • Are not economically viable, impossible / extremely difficult to achieve;
    • Costly to Wrapped (outside of the Contract / reasonable request);
    • Illegal, immoral;
    • Unreasonable, or contradictory to previous requests;
    • Relate purely to general IT support

Will automatically be rejected.

1. Wrapped has the final say as to what constitutes any of the above.

Entire Agreement

1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises and assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that it not set out in the Contract.  Each party agree that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
3. Nothing in this clause shall exclude liability for fraud.

Notices

1. Any notice given to a party under or in connection with this agreement shall be in writing and shall be delivered by pre-paid first class post or other next Business day delivery only to Wrapped’s trading address at The Pallion, Whinchat Hall, Skipwith Road, Escrick. York, YO19 6EJ.
2. This clause does not apply to the service of any proceedings or any documents in any legal action, or where applicable, any arbitration or other method of dispute resolution.