Dcent Terms of Business

The following terms and conditions apply to all services provided by Dcent to the Client.

Definitions and Interpretations

1.1 In these Terms, unless the context otherwise requires:

"Acceptance" means the date of acceptance of the Deliverables by the Client in accordance with clause 8 below;
"Agreement" means these Terms of Business and any Order Form;
"Background IP" means Dcent's proprietary software or Intellectual Property Rights incorporated in or forming part of the Deliverables which existed prior to the commencement of the Project;
"Client" means a company incorporated in
"Client Materials" means the content and materials provided to Dcent by the Client from time to time for incorporation in the Deliverables provided under these terms;
"Deliverables" means the Deliverables, as described in the Order Form, to be supplied by Dcent to the Client;
"Fees" means any fees payable by the Client to Dcent in connection with this Agreement;
"Intellectual Property Rights" means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trademarks, service marks, trade names, patents, petty patents, utility models, design rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off, including all renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future;
"Dcent" means Evisua Limited, a company incorporated in England and Wales under number 05997321, whose registered office is at Star House, 4th Floor, 15-17 Great Portland Street, London, W1W 8QA;
"Order Form" means the statement of work detailing, amongst other things, the Deliverables, Services, Specification and the Fees attached at Schedule 2;
"Project" means the development and delivery of Deliverables by Dcentin accordance with the Specification;
"Project Fee" means the fees, as specified in the Order Form, payable by the Client in connection with the delivery of the Project;
"Services" means any Services supplied as part of this agreement;
"Site" means the website to be developed by Dcent forming part of the Deliverables or as otherwise identified in the Order Form;
"Specification" means the outline description of the development, design or other activation work for the Project as detailed in the Order Form and attached to this agreement at Schedule 1;
"Sprint" means a phase of the Project as detailed in the Specification;
"Support Fee" means the fee, as specified in the Order Form, payable by the Client in connection with the provision of the Support Services;
"Support Services" means the support services, as specified in the Order Form, to be provided by Dcent;
"Third Party Products" means any third party software or Intellectual Property Rights incorporated in or forming part of the Deliverables.

1.2 Any of the foregoing definitions apply, as the context may require, to the singular or the plural form of the term used.

1.3 In this Agreement:

clause headings and the table of contents are inserted for ease of reference only and shall not affect construction;
references to "writing" or cognate expressions includes a reference to e-mail, facsimile transmission or comparable means of communication;
words importing one gender shall be treated as importing any gender, words importing individuals shall be treated as importing bodies corporate, corporations, unincorporated associations and partnerships and vice a versa, words importing the singular shall be treated as importing the plural and vice a versa, and words importing whole shall be treated as including a reference to any part thereof; and
references to clauses are to the clauses of this Agreement.

Services

2.1 Dcent shall, subject to these Terms and to the extent specified in the Statement of Work order form:

Deliver all work in accordance with the Scope, Specification; and
recommend and arrange for a suitable support partners ; and
provide any going support and maintenance services so far as they are agreed in the statement of work.

Dcent’s Obligations

3.1 Dcent will use reasonable endeavours to ensure that:

the Services are carried out in a good and workmanlike fashion and with the care, skill and diligence required in accordance with the practice and standards prevailing in the industry; and
in respect of the web development Services the Site shall function as described in the Statement of Work;
at Delivery the Site shall have a reasonably consistent appearance across the 2 most recent versions of all commonly used desktop and mobile browsers;

Client’s Obligations

4.1 The Client acknowledges that Dcent’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 the information and data the Client provides to Dcent. Accordingly, the Client shall provide Dcent with access to, and use of, all information, data and documentation reasonably required by Dcent for the performance by Dcent of its obligations under this agreement.

4.2 The Client shall provide the necessary Materials to Dcent in a timely manner (and at the latest within 48 hrs of a request from Dcent) and in any format reasonably requested by Dcent.

4.3 The Client shall be responsible for the compliance of the Materials in accordance with clause 9 below.

4.4 The Client acknowledges that under Agile development processes the detail of certain features may be subject to change and descoping. This is to allow the Client to prioritise certain tasks as the project develops and Dcent to ensure a strong workable MVP is delivered within budgets and timescales.

Price and Payment

5.1 In consideration of Dcent providing the Services in accordance with these Terms and any relevant Order Form, the Client shall pay Dcent the Fees, as set out in the Scope of Work order form.

5.2 If any payment is not paid to Dcent within 7 days after the relevant due date and without prejudice to any other rights and remedies available to Dcent, Dcent may, without liability to the Client, suspend its performance of the Services under this agreement until such outstanding payment is received and Dcent shall be under no obligation to provide any or all of the Services while the outstanding Fees remain unpaid.

5.3 If Dcent has not received payment within 7 days after the due date,Dcent may elect to charge interest on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank PLC at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.

5.4 In relation to payments disputed in good faith, interest under clause 5.3 is payable only after the dispute is resolved, on sums found or agreed to be due, from 7 business days after the dispute is resolved until payment.

5.5 All Fees stated or referred to in this Agreement:

are payable in ETH or BTC unless otherwise agreed in writing;
are exclusive of value added tax, unless otherwise expressly stated, which shall be paid at the same time as payment of the Fees.

5.6 The Fees for each of the services provided may increase from time to time in consultation with the Client upon 30 days notice in writing. If the Client is unhappy with the increase, it may terminate this Agreement under clause 17.

Project Management

6.1 Each party shall appoint a project manager who shall:

provide professional and prompt liaison with the other party; and
have the necessary expertise and authority to commit the relevant party.

6.2 The project managers shall meet/catch-up at least once every week until Delivery of the Project.

Variations to Scope and Specifications

7.2 If at any time the Client wishes to vary a material part of the Project Scope then the Client shall provide Dcent with full written particulars of such variation and with such information as Dcent may reasonably require.

7.3 Dcent shall then submit to the Client any changes to the resource plan for such variation specifying what changes (if any) will be required to the Fees and what variation will be required to the Timings.

7.4 Within 5 working days following the updated fee and timing plan proposal the Client may elect either:

To accept the quotation and any change and variation submitted by Dcent; or
to withdraw the proposed variation to the Scope and Specification.

Review and Acceptance

8.1 Dcent will provide the Client with an opportunity to review any strategic, creative, design or development work prior to sign off and launch.

8.2 The Client shall provide feedback to Dcent on any area of deliverables which aren’t completed, fail QA or don’t meet the specification and will be discussed during the Weekly Meeting.

8.3 Any material defects will then either go into the ‘Backlog’ and form part of the following week’s planning meeting or if only minor a bug will be added to the Maintenance board.

Credits

10.1 Dcent may include within the Deliverables a credit notice "byDcent" in a position and with the degree of prominence as may be agreed with the Client, with the Client to have final approval.

10.2 Dcent may use the Client's business name, corporate name, trade mark or any other distinctive name, logo or device in its publicity releases, advertising (including client lists) and other commercial communication material for the purposes of highlighting that the Client is a client of Dcent, with the Client’s prior approval of the content and placing of any such communication.

Intellectual Property

11.1 All Intellectual Property Rights in the Site, the Materials and any other content created as a result of this agreement but excluding the Background IP, arising in connection with this Agreement shall be the property of the Client subject to 11.2.

11.2 Subject to full payment of all fees. Dcent assign absolutely with full title guarantee all such Intellectual Property Rights to the Client. The parties shall execute all documents necessary to give effect to this clause 11.1. Should payment be withheld Dcent reserve the right to hold any output be it Intellectual Property, physical or digital Product as lien.

Confidentiality

12.1 Dcent and the Client agree not to:

(a) disclose any information whether technical or commercial (including all specifications, drawings and designs, business plans and strategies, disclosed in writing, , orally or by inspection of documents or during discussions between the parties) which it receives from the other party and which is identified as confidential or proprietary by the other party or the nature of which is clearly confidential or proprietary or ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure ("Confidential Information"); or (b) make any use of any such Confidential Information other than for the purpose of performance of this Agreement.

12.2 Dcent agrees that it will not at any time or in any manner, either directly or indirectly, use any Confidential Information for the Dcent’s own benefit, or divulge, disclose, or communicate in any manner any Confidential Information to any third party without the prior written consent of the Client.Dcent will protect the Confidential Information and treat it as strictly confidential. Dcent will not, under any circumstances, contact any of the Client’s end clients directly.

12.3 Each party may disclose Confidential Information received from the other to its responsible employees, consultants, subcontractors or suppliers who need to receive the information in the course of performance of this Agreement and who have entered into an agreement containing appropriate confidentiality provisions.

12.4 The confidentiality obligations in this clause shall not apply to any information which:

is or subsequently becomes available to the general public other than through a breach by the receiving party; or
is demonstrably already known to the receiving party before disclosure by the disclosing party;
is developed through the independent efforts of the receiving party; or
the receiving party rightfully receives from a third party without restriction as to use.

12.5 Upon termination or expiration of this Agreement, each party shall return or destroy all Confidential Information obtained from the other party and all copies thereof.

12.6 The obligations of confidentiality in this clause 4 shall not be affected by the expiry or termination of this agreement.

Warranty and Liability

13.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.

13.2 Dcent shall use its best endeavours to fulfil the scope and specification as detailed in the Statement of Work by the date specified in the Specification.

13.3 Dcent warrants that that websites, apps or custom experiences will perform in accordance with the Specification.

13.4 Dcent shall inform the Client in advance of any third party software to be used in the development of the Site. Dcent shall be responsible for obtaining any third party licence before using third party software in relation to the Site in order to comply with the terms of this agreement. Any associated costs will be passed on to the Client.

13.5 Nothing in this agreement shall operate to exclude or limit either party’s liability for death or personal injury caused by its negligence or fraud or fraudulent misrepresentation or any other liability which cannot be excluded or limited under applicable law.

13.6 Neither party shall be liable to the other for any damage to software, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.

13.7 Dcent shall indemnify the Client for any breach of this agreement, negligence, fraud or wilful wrongdoing.

13.8 Dcent shall not in any event be liable to the Client under this Agreement in contract, tort or otherwise or be deemed to be in breach of its obligations under this Agreement:

for any delay in performing or failure to perform its obligations to the extent that such delay or failure was due to a failure by Client to perform its obligations under this Agreement; or
for the consequences of any acts or omissions of the Client or its employees, contractors or agents.

13.9 the Client’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed £50,000.

Data Protection

14.1 The Parties agree that, to the extent Dcent processes any Personal Data on behalf of the Client:

it shall act only on instructions from the Client; and
it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
16.2 In this clause 16, "Personal Data" has the meaning given in the Personal Data Protection Act 2018.

Termination

15.1 This Agreement may be terminated by notice in writing having immediate effect in any of the following events:

by Dcent, if the Client fails to pay any sum payable under this Agreement when due and such sum remains outstanding more than thirty (30) days after notice from Dcent to the Client requiring it to be paid;
by either party for any reason , by giving at least sixty (60) days’ notice;
by either party, if the other commits any material breach of this Agreement and, in the case of a material breach capable of remedy, fails to remedy the same within fourteen (14) days after receipt of a written notice giving particulars of the breach and requiring it to be remedied;
by either party, if the other gives notice to its creditors or any of them that it has suspended or is about to suspend payment or if the other shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or if an order shall be made or resolution passed for the winding up of the other (otherwise than for the purpose of and followed by a reconstruction or amalgamation) or if an administration order shall be made in respect of the other or if the other shall become insolvent or shall make any assignment for the benefit of creditors or has a receiver appointed of all or any part of its assets or takes or suffers any similar action in consequence of debt.
By either party, if the other suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business

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

15.3 Termination of these Terms shall be without prejudice to the accrued rights, remedies, obligations or liabilities of the Client or Dcent prior to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

Consequences of Termination

16.1 The Client shall pay all Fees payable in respect of the work undertaken by Dcent at the date of termination which has been completed prior to the date of termination.

16.2 Any licence granted to Dcent shall cease upon termination (however occurring) of this Agreement.

16.3 If this Agreement is terminated (however occurring), Dcent shall, subject to payment of its reasonable fees calculated on a time and materials basis, cooperate fully with the Client to ensure an orderly migration to a new service provider.

16.4 Subjected to full payment of any outstanding fees Dcent shall promptly return all Materials and all copies of the Site to the Client, and shall provide to the Client an electronic copy of the Site (including all content on the Site).

Notices

17.1 Any notice required to be given pursuant to this Agreement shall be in writing, and shall be sent to the other party marked for the attention of the person at the address set out for such party in this Agreement. Notices may be sent by first-class mail or fax, or signed and scanned and sent by email. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered seventy two (72) hours after posting and correctly directed faxes and emails shall be deemed to have been received instantaneously on transmission, provided that they are sent to correct email address or fax number.

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

Miscellaneous

18.1 Neither party shall be liable to the other for any delay in performance or failure to perform its obligations under these Terms where such delay or failure is due to circumstances beyond its reasonable control such circumstances including fire, flood, government act and act of God. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 30 days, the party not affected may terminate this agreement by giving 5 days' written notice to the affected party.

18.2 The Client may not assign or purport to assign this Agreement or any of its obligations thereunder without Dcent’s prior written consent.

18.3 Save as expressly provided in this Agreement, these Terms and any relevant Order Form shall operate to the entire exclusion of any other agreement or understanding of any kind between the parties hereto preceding the date of the relevant Order Form and in any way relating to the subject matter of this Agreement.

18.4 This Agreement constitutes the whole agreement and understanding of the Parties as to its subject matter and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to in these Terms.

18.5 In the event of a conflict between the terms of these Terms and the Statement of Work order form, the Statement of Work shall prevail.

18.6 This Agreement is personal to the parties and is not intended to nor shall confer a benefit on any third party. A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

18.7 Any amendment to this Agreement shall be in writing, signed by the parties and expressed to be for the purpose of such amendment.

18.8 This Agreement shall not constitute or be deemed to constitute a partnership between the parties and neither party shall be or be deemed to be an agent of the other for any purpose whatsoever and neither party shall have any authority or power to bind the other in any way.

18.9 Each party acknowledges that in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.

18.10 All rights, remedies and powers conferred upon the parties are cumulative and shall not be deemed or construed to be exclusive of any other rights, remedies or powers now or hereafter conferred upon the parties by law or otherwise and any failure at any time to insist upon or enforce any such right, remedy or power shall not be construed as a waiver thereof.

18.11 The terms of this Agreement are agreed between the Parties to be reasonable but if any clause or part thereof of this Agreement shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable in any way, such invalidity or unenforceability shall in no way impair or affect any other clause or part thereof all of which shall remain in full force and effect.

18.12 This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Either party to these Terms may enter into it by signing any such counterpart.

18.13 This Agreement shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.

18.14 If any provision or part-provision of this agreement 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 this agreement.

18.15 If any provision or part-provision of this agreement 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.

Restrictive Covenants

19.1 Dcent and the Client mutually covenant we will not, in any Relevant Capacity:

for a period of twelve months from the Covenant Start Date, solicit or entice or cause to be solicited or enticed, business involving products or services of a type provided by the Company or any Associated Entity from any customer with whom (in each case) you had business dealings on behalf of the Company or any Associated Entity during the twelve months prior to the Covenant Start Date or in relation to which you have gained any Confidential Information by virtue of your employment; or
for a period of twelve months from the Covenant Start Date solicit or entice to leave their employment any Key Employee employed or engaged at the Covenant Start Date (or during the twelve months prior to the Covenant Start Date) by the Company or any Associated Entity (with the exception of junior and administrative staff) with whom, in each case, you had dealings in the twelve months prior to the Covenant Start Date or in relation to which you have gained any Confidential Information by virtue of your employment. This restriction shall apply regardless of whether the solicitation involves a breach of contract on the part of the person solicited or enticed; or
for a period of twelve months from the Covenant Start Date, offer employment, engagement, partnership or membership of an LLP to or otherwise employ or engage or go into partnership or membership of an LLP with or offer or grant any other ownership interest to any Key Employee employed or engaged at the Covenant Start Date (or during the twelve months prior to the Covenant Start Date) by the Company or any Associated Entity (with the exception of junior and administrative staff) or to a member or partner of any Associated Entity with whom, in each case, you had dealings in the twelve months prior to the Covenant Start Date or in relation to which you have gained any Confidential Information by virtue of your employment. This restriction shall apply regardless of whether the solicitation involves a breach of contract on the part of the person solicited or enticed.
Whilst you agree that the restrictions in this clause are fair and reasonable, each of those restrictions is intended to be separate and severable. If any restriction is held to be unreasonably wide but would be valid if part of the wording were deleted, such restriction will apply with the necessary wording deleted to make it valid. If you are offered new employment, engagement, partnership or membership of an LLP, before entering into any related contract you will provide a copy of this contract to the party making the offer.
The restrictions in this clause 23 apply to you acting directly or indirectly and on your own behalf or on behalf of, or in conjunction with, any firm, company or person.