Last Updated: 4th April 2019
By accepting our proposals for work, you will be accepting the Blue Llama Standard Terms and Conditions for the Supply of Services, the details of which are laid out below.
This agreement is made between:
Blue Llama Ltd of Spark* Studios, Beaumont, St Peter, Jersey (“The Supplier”)
You (“The Client”)
(A) The Client has identified a need for expert help and assistance in the performance and completion of specified projects;
(B) The Supplier has the required level of expertise and has agreed to provide the required assistance on the terms of this Agreement
It is hereby agreed that:
In this Agreement:
1.1. “Errors or Omissions” means any error or omission in the Specified Services that impacts the performance or understanding of the Specified Services. This does not include cosmetic faults and changes to the specification or functionality other than those mutually agreed by both parties under Clause 3.2.
1.2. “Intellectual Property Rights” means any and all patents, patent applications, know-how, trade marks, trade mark applications, trade names, registered design, copyright, database rights or other similar intellectual property rights created, developed, subsisting or used in connection with the Specified Services and whether in existence at the date hereof or created in the future;
1.3 “Proposal Document” means all the text, image and video content contained within this document and placed above the heading entiteld Terms and Conditions.
1.4. “Specified Services” means any goods, software, services or advice to be provided by the Supplier to the Client as specified in the Proposal Document.
1.5. “Schedule” means an attachment to this Agreement.
1.6. “Specified Sum” means the agreed consideration to be paid by the Client to the Supplier as detailed in the Costs Summary section of the Proposal document referencing this Agreement.
1.7. The masculine shall include the feminine and the neuter; and the singular shall include the plural and vice versa.
1.8. A reference to any statute, enactment, order, regulation or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation or instrument as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-enactment thereof.
1.9. Headings are included in this Agreement for ease of reference only and shall not affect the interpretation or construction of this Agreement.
1.10. References to Clauses and Schedules are, unless otherwise provided references to Clauses of and Schedules to this Agreement.
2. Basis of Supply (Agreement)
2.1. The Supplier shall supply the Specified Services to the Client for the Specified fees, in accordance with this Contract.
2.2. No variation or addition to this Contract shall be binding upon the Supplier unless agreed in writing between an authorised resprentative of the Supplier and a duly authorised representative of the Client.
2.3. Subject to any variation in accordance with clause 2.2, this Contract (together with matters referred to on the face of the Supplier’s quotation and/or order confirmation) embody the entire understanding of the parties and override any prior promises, undertakings or representations.
3. Specified Services
3.1. Where variation, addition or alteration is agreed to these Specified Services (see 2.2), a new proposal document will be drafted and agreed by both Client and Supplier. Upon the drafting of a new schedule, the Supplier will offer a price for the services described within.
3.2. The authorized representative of the Supplier shall be Phil de Gruchy and the authorized representatives of the Client shall be those who appear as signatory/signatories of this document.
3.3. The Supplier shall take all reasonable steps to comply with any timetable or other targets for progress or delivery of the whole or any agreed part of the Specified Services or the completion of the Specified Services agreed in writing between the parties.
3.4. The Supplier may at any time and without giving the Client prior notification, upon presentation of documentary evidence of a legal obligation, make changes to the Specified Services which are necessary to comply with any applicable safety, statutory or legal requirement or obligation.
4. Invoices for Specified Services
4.1 Any quotation and/or proposal produced by the Supplier which forms all or part of a Purchase Order shall be governed by the terms and conditions of this Agreement.
4.2 Each Purchase Order awarded to the Supplier shall form a new Schedule to this Agreement.
4.3 When both Supplier and Client are in agreement, a formal purchase order is not required. Written acceptance (including email) of a quote is deemed to constitute a Purchase Order.
4.4 In consideration of the provision of the services by the Supplier, the Client shall pay the Charges.
4.5 The Supplier shall invoice the Client for the Charges at the intervals specified in the Proposal Document or in upon accepting Purchase Order by the Supplier. If no intervals are so specified the Supplier shall invoice the Client at the end of each month for services performed during that month.
4.6 The Client shall pay each invoice submitted to it by the Supplier within 14 days of receipt to a bank account nominated in writing by the Supplier from time to time.
4.7. Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Supplier any sum due under this agreement on the due date:
(a) the Client 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 4.7(a) will accrue each day at 15% a year above the Bank of England’s base rate from time to time, but at 15% a year for any period when that base rate is below 0%;
(b) the Supplier may suspend all or part of the services until payment has been made in full.
4.8 All sums payable to the Supplier under this agreement:
(a) are exclusive of local sales taxes, and the Client shall in addition pay an amount equal to any local sales tax chargeable on those sums on delivery of a local sales tax invoice; and
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding.
4.9 The Supplier may request the Client for the advanced payment for the services to be performed. The amount of the advanced payment shall be specified in the Proposal Document or any other document submitted to the Client. The Supplier shall be entitled not to commence provision of any services until the receipt of the requested advanced payment(s) in full.
5. Duration and Termination
5.1. This Agreement shall commence from the date of agreement of the Proposal Document and shall remain in force until the Specified Services are completed as defined in the Schedules to this Agreement unless terminated early.
5.2. Either party may terminate this Agreement by giving written notice to the other party in the event that:
5.2.1. Either party is in breach of this Agreement and fails to remedy such breach (if capable of remedy) within 28 days after being required in writing to do so;
5.2.2. The other party goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.
5.3. The Client may terminate this Agreement forthwith if the Supplier, or any party performing the Supplier’s obligations under Clause 7 below, fails to provide a reasonable level or quality of service in the sole and reasonable opinion of the Client or if in the sole and reasonable opinion of the Client it is no longer appropriate for the Agreement or any Purchase Order to remain in force.
5.4. In the event that this Agreement is terminated before the completion of the Specified Services, the Supplier shall be entitled to payment by the Client for work completed to the reasonable satisfaction of the Client up to the date of the termination.
6. Client’s Obligations
6.1 The Client shall, at its own expense, provide the Supplier with all documents or other materials and data or other information necessary for the completion of the Specified Services, in sufficient time to enable the Supplier to provide the Specified Services in accordance with any timetable or other target for progress or completion agreed in writing between the parties.
6.2 The Client shall be responsible for the content of all documents or other materials and shall ensure the accuracy of all data or other information provided to the Supplier in the course of this Agreement.
6.3 The Client shall, at its own expense, retain duplicate copies of all documents or other material and data or other information provided to the Supplier and shall insure against its accidental loss or damage. The Supplier shall have no liability for any such loss or damage, howsoever caused.
6.4 The Client shall, if required, provide all relevant resources and associated licenses required for an item of work to take place where-upon these fall outside of the standard development environment maintained by the Supplier (see 7.3). In the event that any item of work is deemed to require such measures, the necessity will be raised by the Supplier prior to provision of a quotation.
6.5 The Client shall make payment within thirty (30) days of receving an invoice, whether electronic or otherwise. In the event of late payment, the Supplier reserves the right to apply an administrative fee of £30 plus late payment charge in accordance with Jersey Law.
6.6 Where payment is not made within the agreed period, The Supplier reserves the right to suspend or terminate (with immediate effect) all services being supplied to The Client. This shall include but not be limited to: all active warranties, hosting, domain name (and nameserver) and email services. Services suspended or terminated because of non-payment (or late payment) shall not be reinstated until full cleared payment of the original debt plus all applicable charges and penalties (see 6.5) has been received.
6.7 The Client shall (unless otherwise agreed by The Supplier) pay a deposit of 25% of the quoted project cost by way of a non-refundable deposit. The Supplier will not confirm a booking for work to take place until this is received.
6.8 If the Supplier’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.
6.9 If the Supplier’s performance of its obligations under this agreement is prevented or delayed by the Client’s failure to provide requested information and documents required for the provision of the services, the Client shall pay the Company, as liquidated damages, 5% of the Client’s payments to the Company for each day’s delay starting from the 30th day from the date when the Company has requested such information or documents up to a maximum of 100%.
6.10 The Client shall pay these liquidated damages on demand or the Company may deduct them from its payments to the Company.
6.11 The parties confirm that these liquidated damages as set out in clause 6.9 are reasonable and proportionate to protect the Company’s legitimate interest in performance.
6.12 The Client shall not, without the prior written consent of the Supplier, at any time from the date of this agreement to the expiry of 12 months after the termination or expiry of this agreement, 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 the services.
6.13Any consent given by the Supplier in accordance with Clause 6.12 shall be subject to the Client paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor.
7. Supplier’s Obligations
7.1 The Supplier will take all reasonable steps to ensure that the Specified Services are completed in accordance with any timetables or other targets agreed in the Proposal Document. The Supplier may:
7.1.1 If, mutually agreed by both parties in writing (in order to comply with any agreed timetables or targets set out in the appropriate Proposal Document) obtain or provide extra resources (whether in the form of equipment or personnel) of the requisite standard in order to ensure that the Specified Services are completed in accordance with the appropriate Schedule. The Client has the right to refuse to accept any such personnel on the grounds of insufficient qualification, or experience, or for financial instability reasons or for security reasons.
7.1.2 In the event that the Supplier finds itself unable to provide the whole or any part of the Specified Services for whatever reason, the Supplier shall offer the Client a substitute (“the Substitute Supplier”) of equivalent expertise to work in the Supplier’s place. The Client has the right to refuse to accept the Substitute Supplier offered on the grounds of insufficient qualification, or experience, or for financial instability reasons or for security reasons in which case the Supplier shall offer a further Substitute Supplier. If the Client finds the Substitute Supplier acceptable, the Supplier shall provide an overlap period of five working days during which time the Supplier shall ensure that the Substitute Supplier fully understands the requirements of the Client and the progress made in providing the Specified Services. The Supplier shall not charge the Client any extra sum for this overlap period. The Supplier shall be responsible for the payments and expenses of the Substitute Supplier. In the event that the Supplier cannot provide an acceptable Substitute Supplier, the Client is entitled to terminate this Agreement forthwith.
7.2 The Supplier shall back up the Specified Services every 24 hours and place the backed up copy within a secure location.
7.3 At no cost to the Client, the Supplier shall procure and maintain the development environment (hardware and software) upon which the Supplier shall perform the Specified Services.
7.4 The Supplier shall provide any Specified Services ordered under this Agreement at the rates current in force at the time the quote was generated. An accepted quote will fully outline the cost (or potential cost) of the services ordered. If any change to the specification issued for generation of the quote is made, the supplier shall reserve the right to make an additional charge.
7.5 The Supplier shall provide the Client with a thirty (30) day warranty period on any Specified Services accepted by the Client. During this warranty period the Supplier shall correct all Errors or Omissions identified within the Specified Services. The Supplier shall use reasonable endeavours to correct the Errors or Omissions reported to the Supplier within five (5) working days unless mutually agreed otherwise.
7.6 The Supplier shall inform the Client of any proposed third party products the Supplier proposes to include in the Specified Services. The Client in its sole opinion has the right to refuse to accept the use of the third party products within the Specified Services.
7.7 The Supplier agrees to test and ensure compatibility of all deliverables against the latest versions of the Chrome, Firefox, Safari and Edge browsers, as well as the latest three versions of Internet Explorer.
8. Conflicts of Interest
8.1 The Client understands and accepts that the Supplier is entitled to seek, apply for, accept and perform contracts to supply goods and services to other parties. The Supplier agrees to request the permission of the Client to take on new work that could be deemed as a conflict of interest. If the Supplier does not wish the Client to take on this work then these wishes will be upheld.
9.1 The Supplier warrants to the Client that the Specified Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the appropriate Proposal Document and any timetables or other targets agreed.
10. Limitation of Liability
10.1 The Specified Services will be negotiated and agreed by the Supplier with the Client in the context of information provided by the Client as to the Client’s particular needs and requirements. The Specified Services will have been prepared and costed accordingly. Therefore:
10.1.2 The Supplier shall have no liability to the Client for any delay, loss, damage, costs, expenses or other claims for compensation arising from any information or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client;
10.1.3 The Supplier shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from the Client making use of the Specified Services for any purpose not clearly disclosed to the Supplier;
10.2 Neither party excludes or limits liability to the other for death or personal injury.
10.3 Subject always to Clause 10.2, the liability of either party for Defaults which may arise out of or result from any act, default or negligence on the part of that party shall be subject to the financial limits set out in this Clause 10.3, without prejudice to any non-financial remedies:
10.3.1 The aggregate liability of either party for all Defaults resulting in direct physical loss of or damage to any tangible Property of any party under this Agreement shall in no event exceed the sum of two-hundred-and-fifty thousand pounds (£250,000).
10.3.2 The aggregate liability for direct loss or damage under this Agreement of either party for all Defaults (other than a Default governed by Clause 10.3.1) shall be limited to damages which in no event shall exceed the total charge paid or payable by the Client to the Supplier in providing the Specified Services.
10.4 Subject always to Clause 10.2, in no event shall either party be liable to the other or:
10.4.1 loss of profits, business, revenue, goodwill or anticipated savings; and/or
10.4.2 indirect or consequential loss or damage.
10.5 The parties expressly agree that any order for specific performance made in connection with this Agreement in respect of either party shall be subject to the financial limitations set out in Clause 10.3.2.
10.6 Neither party shall have any liability to the other (whether in contract, tort or otherwise) in respect of any legal action or other proceedings relating to the subject matter of this Agreement which is commenced more than six (6) years after the date when the party bringing such proceedings first became (or ought reasonably to have become) aware of the facts constituting the relevant cause of action.
11. Intellectual Property
11.1 The Supplier shall assign all Intellectual Property Rights in the Specified Services to the Client.
11.1.1 In exemption to the above; the supplier reserves the right (with prior agreement from the Client), to use internally developed code libraries (‘canned code’) to accelerate the development of projects, when it is mutually beneficial. When these libraries are used, the Intellectual Property rights shall remain the exclusive property of the supplier, however, the client shall be granted license to use the binary (compiled) version of the libraries.
11.2 Unless agreed otherwise in writing between the Client and Supplier, the Client shall retain ownership of all intellectual Property Rights of any nature and, if registerable, whether registered or not, in the software, documents or other material and data or other information provided to the Supplier in the context of this Agreement. For the avoidance of doubt, the Client shall not be deemed to have granted the Supplier any license to use the software documents or other material and data or other information other than for the purposes of this Agreement.
11.2.1 The Client acknowledges that any components developed independently by the Supplier, for reuse in expediting projects shall be deemed as excluded from the statements made in clause 11.2 on the basis that: the use of such components is clearly declared within the quotation issued to the Client, such components are developed at no cost to the Client, and the Client is provided an unlimited license to use the binary and/or source form of said components as part of any deliverables.
11.3 The Supplier warrants to the Client that no documents, software or other material and data or other information and devices or processes will be provided by the Supplier for use in or in the provision of the Specified Services which infringe any third party Intellectual Property Rights;
11.4 The Client warrants to the Supplier that no documents or other material and data or other information and devices or processes will be provided by the Client to the Supplier for use in the provision of the Specified Services which infringe any third party Intellectual Property Rights.
11.5 In the event that a claim for the infringement of third party Intellectual Property Rights is made or intimated against the Supplier in relation to documents or other material, data and other information or devices and processes provided to the Supplier by the Client for use in the provision of the Specified Services or which the Client dictated should be used by the Supplier in the provision of the Specified Services, the Client shall indemnify the Supplier against any and all costs, expenses, damages or other losses suffered or payments made by the Supplier in connection with the claim and any associated judgment or settlement.
11.6 In the event that a claim for the infringement of third party Intellectual Property Rights is made or intimated against the Client in relation to documents, or other materials, software, data and other information or devices and processes delivered to the Client by the Supplier in the provision of the Specified Services, the Supplier shall indemnify the Client against any and all costs, expenses, damages or other losses suffered or payments made by the Client in connection with the claim and any associated judgment or settlement.
12.1 Both parties will take all reasonable steps to ensure that any documents or other materials and data or other information which are supplied to the other party in the provision of the Specified Services and are clearly marked as confidential remain confidential to the parties. Such information will only be made available by the parties to those personnel who have a reasonable need to know of it and the documents or other materials and data or other information or copies thereof will not be made available to any third parties. Either party is entitled to demand the return of all copies of any such documents or other materials and data or other information by giving the other party written notice.
12.2 This obligation of confidentiality will remain in force beyond the cessation or other termination of this Agreement.
12.3 This clause shall not apply to any documents or other materials and data or other information which are already in the public domain at the time when they are provided by either party, and shall cease to apply where either party is required by law to make a disclosure or if at any time the information becomes public knowledge through no fault of the other party.
12.4 Both parties undertake that any information which is received from the other party in the provision of the Specified Services will only be used for the purposes of this Agreement.
12.5 Nothing in this Clause 12 shall prevent the Supplier or the Client from using data processing techniques, ideas and know-how gained during the performance of this Agreement in the furtherance of its normal business, to the extent that this does not relate to a disclosure of confidential information or an infringement by the Client or Supplier of any Intellectual Property Rights.
13.1 The Supplier shall not be liable to the Client or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations in relation to the Specified Services, if the delay or failure was due to any cause beyond the Supplier’s reasonable control.
13.2 The parties to this Agreement are independent businesses and nothing in this Agreement or by virtue of performing it shall be taken as creating a relationship of agent to principal, employer to employee, partnership or joint venture between the Supplier and the Client. Neither party shall be entitled to enter into agreements or other arrangements on behalf of the other and it is intended that both parties shall retain their independence.
13.3 The terms of this Agreement represent the entire agreement between the parties and supersede any previous representations or agreements whether recorded in writing or otherwise.
13.4 Both parties agree that the terms of this Agreement are fair and reasonable in all the circumstances.
13.5 It is agreed that this Agreement will be governed and construed according to the laws of Jersey and the parties submit to the non-exclusive jurisdiction of the Jersey Courts.
13.6 The Supplier has the right to add an accreditation and back link into the footer of all the sites they create. The client also agrees that their website may be presented in portfolio contained on the Supplier’s own website.
14. Entire Agreement
14.1 This Agreement (as amended from time to time), together with any document expressly referred to in any of its terms, contains the entire agreement between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of this Agreement.
14.2 The Client confirms that, in agreeing to enter into this Agreement, it has not relied on any representation save insofar as the same has expressly in this Agreement been made a representation and agrees that it shall have no remedy in respect of any misrepresentation which has not become a term of this Agreement, save that the agreement of the Client contained in this Clause 16.2 shall not apply in respect of any fraudulent or negligent misrepresentation, whether or not such has become a term of this Agreement.
15.1 Any notice under or in connection with this Agreement shall be in writing and shall be delivered personally or sent by recorded delivery or email to the address of the party set out in this Agreement or to any other person or address subsequently notified by one party to the other.
15.2 In the absence of evidence of earlier receipt any notice shall be deemed to be duly given:
15.2.1 if delivered personally when left at the address referred to in the Schedule of Services; or
15.2.2 if sent by recorded delivery three (3) days after posting it;
15.2.3 if sent by email, when received.
16. Assignment and subcontracting
The Client consents that the Supplier may assign or subcontract any or all of its rights and obligations under this agreement to its Subcontractors without the Client’s prior written approval.
Subcontract: means any contract between the Supplier and a third party pursuant to which the Supplier agrees to source the provision of any of the Services or goods from that third party.
Subcontractors: those persons, whether located in Jersey or not, with whom the Supplier enters into a Subcontract or its or their servants or agents, and any third party with whom that third party enters into a subcontract or its servants or agents.