These conditions will apply to any contract with chilliapple for the supply of services. Please read these conditions carefully and make sure that you understand them before proceeding with our proposal as set out in our scope of work. Please note that by confirming your agreement to our scope of work (including the sending of a purchase order), you agree to be bound by these conditions and the other documents expressly referred to in them.
You should print a copy of these conditions or save them to your computer for future reference.
1.1 The definitions and rules of interpretation in this clause apply in these conditions.
Brief: the brief, assignment, job or project as described in the Scope of Work.
Client: the person, firm or company who purchases Services from chilliapple.
Client's Project Manager: the Client's manager for the Brief appointed in accordance with condition 6.1(a).
Contract: the Client's confirmation that it wishes to proceed with the Scope of Work (whether by confirmatory email, purchase order or other assent) and chilliapple's acceptance of it under condition 3.
Deliverables: all products and materials developed by chilliapple in relation to the Brief in any media, including, without limitation, artwork, branding, page layout, Websites, Mobile Apps, Software (or other computer programs), data, diagrams, reports and specifications (including drafts).
Inappropriate Content: Materials that infringe any applicable laws, regulations or third party rights, including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Materials: the content provided to chilliapple by the Client from time to time for Deliverables or incorporation into Deliverables, whether artwork, layouts, designs or electronics files.
Mobile Apps: the mobile application comprising Software developed for operation on the operating system as set out in the Scope of Work (whether Android, Blackberry OS, iOS, Windows Phone or another).
Milestone: a date by which a part of the Brief is estimated to be completed, as set out in the Project Plan.
Pre-existing Materials: materials which existed before the commencement of the Brief.
Project Plan: the estimated timetable (including without limitation Milestones) set out or referred to in the Scope of Work.
Scope of Work: the scope of the work describing the Brief and responsibilities for the provision of the Services by chilliapple in accordance with the Contract.
Server: a computer server administered by chilliapple or a third party contracted to chilliapple (if any), as more particularly described in the Scope of Work.
Services: the services to be provided by chilliapple under the Contract.
Software: the software for the Website, Mobile App or other Deliverable in relation to the Brief.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
chilliapple: Chilli Apple Limited, incorporated and registered in England and Wales with company number 06683439, whose registered office is at Moorgate House, 7b Station Road West, Oxted, Surrey, United Kingdom, RH8 9EE, United Kingdom.
chilliapple's Project Manager: chilliapple's manager for the Brief, appointed in accordance with condition 5.3.
Visitor: a visitor to the Website or a person interacting with a Mobile App.
Website: the website, whether hosted by chilliapple or not (as detailed in the Scope of Work), comprising Software as set out in the Scope of Work.
1.2 Clause headings shall not affect the interpretation of these conditions.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular and a reference to one gender shall include a reference to the other genders.
1.5 References to writing and written includes faxes and emails.
2.1 These conditions shall:
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on chilliapple unless in writing and signed by a duly authorised representative of chilliapple.
The Client's confirmation that it wishes to proceed with the Scope of Work (whether by confirmatory email, purchase order or other assent) following receipt of the Scope of Work constitutes an offer by the Client to purchase the Services specified in the Scope of Work on these conditions. Accordingly, the acknowledgement by chilliapple (which may be by email, the signing and return of the acknowledgement copy of a purchase order form or other acknowledgement) or chilliapple's commencement or execution of work following the Client’s confirmation shall establish a contract for the supply and purchase of those Services on these conditions. The Client's standard terms and conditions (if any) attached to, enclosed with, or referred to in, in its confirmation shall not govern the Contract.
Scopes of Work provided to the Client prior to the entry into of the Contract shall remain valid for a period of 30 days from the date of the Scope of Work unless otherwise stated in the Scope of Work. Past this period, the contents (particularly the charges) may change.
5.1 chilliapple shall use reasonable endeavours to manage and complete the Brief, and to deliver the Deliverables to the Client, in accordance in all material respects with the Project Plan.
5.2 chilliapple shall use reasonable endeavours to meet the Milestones specified in the Project Plan, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
5.3 chilliapple shall appoint chilliapple's Project Manager who shall have authority to contractually bind chilliapple on all matters relating to the Brief. chilliapple shall use reasonable endeavours to ensure that the same person acts as chilliapple's Project Manager throughout the Brief, but may replace him from time to time where reasonably necessary in the interests of chilliapple's business.
5.4 If in the reasonable opinion of chilliapple, chilliapple considers that any Materials provided to chilliapple by or on behalf of the Client is Inappropriate Content then chilliapple shall not be required to supply any Services in relation to such Materials or any Deliverables based on them.
6.1 The Client shall:
6.2 If the Client provides Materials to chilliapple by electronic means, chilliapple shall not be responsible for checking:
6.3 The Client shall keep one or more copies of physical Materials as backup. chilliapple shall destroy all physical Materials at the termination of the Contract.
6.4 The Client acknowledges that chilliapple’s ability to provide the Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of any information and data the Client provides to chilliapple and, accordingly, the Client shall provide chilliapple with access to, and use of, all information, data and documentation reasonably required by chilliapple for the performance by chilliapple of its obligations under the Contract.
6.5 If chilliapple's performance of its obligations under the Contract is prevented or delayed at the request of the Client or by any act or omission of the Client or the Client's agents, sub-contractors or employees, the Project Plan shall be amended to take account of such delay. If chilliapple can demonstrate that the delay has resulted in an increase in cost to chilliapple of carrying out its obligations under the Contract, chilliapple may, at its sole discretion, notify the Client that it wishes to increase the charges by an amount not exceeding any such demonstrable cost and chilliapple may invoice the Client for any additional monies that become payable in this way within 30 days of demonstrating the increase in costs.
6.6 The Client shall not, without the prior written consent of chilliapple, at any time from the date of the Contract to the expiry of 9 months after the completion of the Services, solicit or entice away from chilliapple or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of chilliapple.
6.7 Any consent given by chilliapple in accordance with condition 6.6 shall be subject to the Client paying to chilliapple a sum equivalent to 20% of the then current annual remuneration of chilliapple's employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Client to such employee or sub-contractor.
7.1 The Client's Project Manager and chilliapple's Project Manager shall meet when reasonably requested by a party to discuss matters relating to the Brief. If either party wishes to change the scope of the Services as set out in the Scope of Work, it shall submit details of the requested change to the other in writing.
7.2 If either party requests a change to the scope or execution of the Services, chilliapple shall, within a reasonable time, provide a written estimate to the Client of:
7.3 If chilliapple requests a change to the scope of the Services, the Client shall not unreasonably withhold or delay consent to it.
7.4 If the Client wishes chilliapple to proceed with the change, chilliapple has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Project Plan and any other relevant terms of the Contract to take account of the change.
8.1 Condition 8.2 shall apply if the Services are to be provided on a time-and-materials basis. Condition 8.3 and condition 8.4 shall apply if the Services are to be provided for a fixed price. The remainder of this condition 8 shall apply in either case.
8.2 Where the Services, or part of the Services, are provided on a time-and-materials basis:
8.3 Where the Services, or part of the Services, are provided for a fixed price, this shall be set out in the Scope of Work (which may be amended by the approval of both parties in writing). Those parts that are for a fixed price shall be paid to chilliapple in instalments as set out in the Project Plan on its achieving the corresponding Milestone or as otherwise specified in the Scope of Work or these conditions. All amounts due under the Contract shall be paid by the Client to chilliapple in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). On achieving a Milestone or when otherwise due as specified in the Scope of Work, chilliapple shall invoice the Client for the charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate), calculated as provided in condition 8.4.
8.4 Any fixed price contained in the Scope of Work excludes:
8.5 The Client shall pay each invoice submitted to it by chilliapple in full, and in cleared funds, within 14 days of receipt. Where requested by chilliapple, the Client shall set up a direct debit for recurring monthly charges.
8.6 Without prejudice to any other right or remedy that chilliapple may have (including its ability to charge under the Late Payment of Commercial Debts (Interest) Act 1998), if the Client fails to pay chilliapple on the due date chilliapple may:
8.7 Time for payment shall be of the essence of the Contract.
8.8 All payments payable to chilliapple under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
8.9 chilliapple may, without prejudice to any other rights it may have, set off any liability of the Client to chilliapple against any liability of chilliapple to the Client.
9.1 In respect of the development and acceptance of a Website, Mobile App or Software of any description:
(i)the content or Materials provided by the Client;
(ii)the design or layout created, made or carried out by chilliapple, or
(iii)the application of the agreed specification for the provision of the Services,
shall no longer be the responsibility chilliapple. chilliapple shall be entitled to use the approved proof as the basis for carrying out the remainder of the Services and proceeding to the next Milestone. Where alterations, amendments or corrections are required by the Client after the approval of proofs by the Client then chilliapple shall be entitled to charge for these on a time-and-materials basis and, at its sole discretion, either invoice for these charges or add them to the next instalment due in accordance with the Project Plan;
9.2 chilliapple warrants that the Website, Mobile App or Software (as applicable) will perform substantially in accordance with the specification set out in the Scope of Work for a period of 30 days from its acceptance or deemed acceptance. If the Website, Mobile App or Software does not so perform, chilliapple shall, for no additional charge, carry out any work necessary in order to ensure that the Website, Mobile App or Software substantially complies with the business requirements or specification. This warranty shall not apply to the extent that any failure of the Website, Mobile App or Software to perform substantially in accordance with the business requirements or specification is caused by any Materials.
9.3 If the Client purchases on-going management Services in relation to a Website:
(i)updating the Website with Materials; and
(ii)providing general customer support in respect of the maintenance of the Website after the warranty period referred to in clause 9.2 has expired,
and any time over and above this limit in any given month shall be provided on a time-and-materials basis. chilliapple may, at its sole discretion, either invoice for these additional charges or add them to the next fixed price due under the Contract.]
9.4 Where chilliapple will not host a Website, chilliapple shall provide such assistance as is reasonably requested by the Client to the person hosting the Website, subject to the payment of chilliapple’s charges on a time-and-materials basis.
9.5 The Client acknowledges that chilliapple has no control over any content placed on a Website or through a Mobile App by Visitors and does not purport to monitor the content of the Website. chilliapple reserves the right to remove content from a Website hosted by chilliapple where it reasonably suspects such content is Inappropriate Content. chilliapple shall notify the Client promptly if it becomes aware of any allegation that any content on the Website hosted by chilliapple may be Inappropriate Content.
9.7 chilliapple warrants that any Website will operate with the then current versions of the following browsers existing at acceptance as well as the two preceding versions thereof:
but cannot warrant that the Website will work for later versions.
9.8 If the Scope of Work provides that chilliapple will obtain a domain name for the Client:
9.9 chilliapple may, at its sole discretion, elect to suspend a Website it hosts (in whole or in part) if:
Exercise by chilliapple of its right of suspension under this clause shall not function as a waiver of any right or termination which chilliapple may have under the Contract.
9.10 chilliapple may include the statement “Designed and developed by chilliapple” on the home page of the Website and in a suitable place in a Mobile App in a form determined by chilliapple.
9.11 The provisions of this clause 9 in no way limit or exclude the applicability of the other conditions in this document, save that where there is a conflict between a provision in this clause 9 and another condition elsewhere, the provision in this clause 9 shall prevail.
10.1 chilliapple shall prepare the Deliverables and complete and deliver them for review by the Client on or before the dates specified in the Project Plan for doing so, specifically drawing the Client's attention to any deviations from any requirements set out in the Scope of Work.
10.2 If, having assessed the Deliverables at any Milestone, the Client reasonably considers that aspects of the Deliverables in question need further work or consideration, it shall promptly give written notice to chilliapple specifying what amendments or modifications the Client wishes to have made. On receipt of such a notice chilliapple shall originate or develop the amendments or modifications or carry out any corrective or remedial work necessary to satisfy the Client's reasonable requirements, and submit a copy of the Deliverables as amended or developed or the corrective or remedial work to the Client. Within 14 days of this submission the Client shall reassess the Deliverables or corrective or remedial work on the same terms as set out above in this clause.
10.3 The process of assessment followed by submission of amendments or modifications to the Deliverables or corrective or remedial work carried out by chilliapple in accordance with clause 11.2 shall be repeated if required by the Client but chilliapple shall be entitled to charge on a time-and-materials basis for such further assessments and submissions.
10.4 If the Client does not wish the process of assessment followed by submission to continue beyond clause 11.2, the Contract shall automatically terminate without further liability to either party and chilliapple shall be entitled to keep any deposit or other non-refundable fixed price expressly stated in the Scope of Work (in consideration of its Services to the date of termination).
10.5 Any material derivation from the requirements set out in the Scope of Work as determined by chilliapple in its reasonable opinion, or variation required by the Client, shall constitute a change in the scope of the Services in accordance with the provisions of condition 7. For the avoidance of doubt, the Client's requirement that chilliapple carry out amendments or modifications or corrective or remedial work for one cycle pursuant to clause 10.2 shall not constitute a material derivation or variation within the meaning of this clause.
10.6 The Client acknowledges that chilliapple will not carry out any due diligence or investigatory work whatsoever on any branding and product identity Deliverables as part of the Services, whether by way of trade mark, domain name, common law or other searches, and chilliapple shall have no liability whatsoever, whether in tort, contract or otherwise, for any actual or potential conflict between the Deliverables and any third party rights and any resulting infringement thereof. The Client agrees that the commercial risk of such conflict and infringement should be borne by the Client because:
For the avoidance of doubt, in addition to a total exclusion of liability, the Client shall not be entitled to any refund or other reimbursement in the event that the Deliverables conflict with or infringe any third party rights or if the Deliverables require amendment following any advice from a solicitor or trade mark agent. If any amendments are required, this shall constitute a change in the scope of the Services in accordance with the provisions of condition 7.
10.7 Subject to clause 10.8, chilliapple agrees to assign all Intellectual Property Rights in the branding and product identity Deliverables to the Client to the extent legally possible and at the request and cost of the Client shall execute any documentation or do any act reasonably necessary to transfer to and vest in the Client beneficial and legal title to such rights.
10.8 For the avoidance of doubt, clause 10.7 shall not apply to the Intellectual Property Rights in the underlying methodologies and methods used and applied by chilliapple to the performance of the Services which shall remain owned by chilliapple in all respects.
10.9 The provisions of this clause 10 in no way limit or exclude the applicability of the other conditions in this document, save that where there is a conflict between a provision in this clause 10 and another condition elsewhere, the provision in this clause 11 shall prevail.
11.1 [Unless otherwise expressly provided for in the Scope of Work, all fixed price consulting Services shall be limited to [four] hours of chilliapple team time. Any time spent over and above this limit shall be charged on a time-and-materials basis.]
11.2 In respect of social media and search engine optimisation consulting Services, no results can be guaranteed in respect of listings, likes, follows or other similar features and the Client shall not claim for innocent or negligent misrepresentation or negligent misstatement based on any statements in this regard.
11.3 The provisions of this clause 11 in no way limit or exclude the applicability of the other conditions in this document, save that where there is a conflict between a provision in this clause 11 and another condition elsewhere, the provision in this clause 11 shall prevail.
12.1 Unless otherwise expressly provided for in these conditions, all Intellectual Property Rights and all other rights in the Deliverables (including in the content of any Website, Mobile App and any Software), but excluding the Materials, arising in connection with the Contract shall be owned by and be the property of chilliapple. chilliapple hereby licenses all such rights to the Client free of charge and on a non-exclusive, worldwide, personal basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables (including the operation of any Website or Mobile App) and the Services as is envisaged by the parties. If chilliapple terminates the Contract under condition 16.2, this licence will automatically terminate.
12.2 Save as expressly agreed in writing by chilliapple, the Client may not sub-licence, sell, make available, disseminate or distribute in any way any Deliverable to any third party. The Client may not modify, adapt, merge, translate, disassemble, decompile, recompile or reverse engineer any Software or other Deliverable or create derivative works based on the whole of or any part of either of them.
12.3 The Client acknowledges that the Client's use of rights in Pre-existing Materials is conditional on chilliapple obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle chilliapple to license such rights to the Client.
12.4 The Client shall indemnify chilliapple against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
13.1 The Client shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Client by chilliapple or its agents, and any other confidential information concerning chilliapple's business or its products which the Client may obtain. The Client shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the Client's obligations to chilliapple, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Client.
13.2 All materials, equipment and tools, drawings, specifications and data supplied by chilliapple to the Client shall at all times be and remain the exclusive property of chilliapple, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to chilliapple, and shall not be disposed of or used other than in accordance with chilliapple's written instructions or authorisation.
13.3 This condition 13 shall survive termination of the Contract, however arising.
chilliapple may announce that it has worked with the Client but any press release or details regarding the Contract shall be in a form agreed by the parties (such agreement not to be unreasonable withheld, conditioned or delayed by the Client).
15.1 The following provisions set out the entire financial liability of chilliapple (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
15.2 All warranties, conditions and other terms implied by statute or common law (including, without limitation, those implied by sections 3 to 5 of the Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.
15.3 Nothing in these conditions excludes the liability of chilliapple:
15.4 Subject to condition 15.2 and condition 15.3:
(i)loss of profits; or
(ii)loss of business; or
(iii)depletion of goodwill or similar losses; or
(iv)loss of anticipated savings; or
(v)loss of goods; or
(vi)loss of contract; or
(vii)loss of use; or
(viii)damage to software; or
(ix)damage to or loss or corruption of data or information; or
(x)any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
16.1 The Contract shall commence in accordance with condition 3 and shall (subject to earlier termination pursuant to this clause 16) terminate in accordance with the Scope of Work.
16.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
16.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
16.4 On termination of the Contract by chilliapple pursuant to clause 16.2, all licences granted by chilliapple under the Contract shall terminate immediately.
16.5 On expiry or termination of the Contract otherwise than on termination by chilliapple pursuant to clause 16.2, chilliapple shall promptly return all electronic Materials to the Client, and (where relevant) shall provide to the Client an electronic copy of the Website or Mobile App (as applicable, including all content on the Website or Mobile App). Where relevant, chilliapple shall provide such assistance as is reasonably requested by the Client in transferring the hosting of a Website to the Client or another service provider, subject to the payment of chilliapple’s charges on a time-and-materials basis.
chilliapple shall not in any circumstances have any liability to the Client under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of chilliapple or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
The rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
20.2 If any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
21.1 chilliapple warrants that, to the extent it processes any Personal Data on behalf of the Client:
21.2 In this clause 21, Personal Data has the meaning given in the Data Protection Act 1998.
22.1 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of chilliapple which is not set out in the Contract.
21.2 Accordingly, the Client shall not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
23.1 The Client shall not, without the prior written consent of chilliapple, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
23.2 chilliapple may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
No one other than chilliapple and the Client, their successors and permitted assignees, shall have any right to enforce any of its terms.
26.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
26.2 Any notice or communication shall be deemed to have been received:
26.2 This clause does not apply to the service of any proceedings or other documents in any legal action or other method of dispute resolution.
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).