Terms and Conditions
1. DEFINITIONS AND INTERPRETATION
1.1 In these terms and conditions, the following words have these meanings:
Agreement means the contract between Ellenom and the Client, which includes these terms and conditions, the Commercial Terms Sheet, Data Processing Terms, the Scope of Work, and any Additional Services Agreements.
Additional Services means any services beyond the Initial Services that Ellenom agrees to provide as specified in an Additional Services Agreement.
Business Day means any day other than Saturday, Sunday, or public holidays in England and Wales.
Client means the person or organization that has engaged Ellenom's services.
Client Content means all information, data, content, logos, trademarks, images, and other materials provided by the Client to Ellenom for incorporation into the Deliverables.
Deliverables means the output of the Services provided by Ellenom, including but not limited to code, documentation, design work, and/or websites, but excluding Client Content.
Error means any significant failure of the Deliverables to comply with the agreed Scope of Work.
Fees means the charges for Services as detailed in the Commercial Terms Sheet and any additional charges as set out in these terms.
Hosting Services means the hosting of Deliverables on a third-party server as described in section 13.
Initial Services means the Retained Services and/or Project Services agreed to be provided by Ellenom as specified in the Commercial Terms Sheet.
IPR means intellectual property rights including copyright, patents, design rights, trademarks, database rights, rights in computer software, and all other similar rights worldwide.
Project Services means the one-off services to be provided by Ellenom as detailed in the Commercial Terms Sheet.
Retained Services means any ongoing services including Hosting Services, digital marketing, support and maintenance, and other services set out in the Commercial Terms Sheet.
Scope Creep means work that exceeds the estimated timescales or other assumptions set out in the Scope of Work.
Scope of Work means the document prepared by Ellenom detailing the Services and Deliverables to be provided.
Services means the Initial Services and any Additional Services.
Third Party ISP means the third-party internet service providers used by Ellenom to provide Hosting Services.
1.2 Headings in these terms are for reference only and do not affect interpretation.
1.3 Words in singular include plural and vice versa; references to any gender include all genders; references to a person include individuals, companies, and other organizations.
1.4 References to any party include their successors and permitted assigns.
1.5 Words like "other," "including," and "in particular" do not limit the meaning of preceding words.
2. SERVICES
2.1 Subject to payment of Fees and provision of Client Content, Ellenom will supply the Services and Deliverables according to this Agreement.
2.2 Before starting Initial Services, Ellenom requires a non-refundable deposit. Ellenom will not begin work until the Client has accepted the Scope of Work in writing, signed this Agreement, and paid any required deposit.
2.3 The Client acknowledges that Ellenom will allocate resources based on time estimates in the Scope of Work. If the Client delays providing information or instructions, this may cause significant delays to the Services and adjustment to Fees, as allocated resources may no longer be available.
2.4 Any dates and times provided by Ellenom for performance of Services are estimates only. Ellenom is not liable for any loss, damage, cost, or expense caused by delays in performing Services.
2.5 The Client acknowledges that requests for Additional Services during delivery of Initial Services may impact estimated delivery dates, and Ellenom may adjust these dates accordingly.
3. CHANGES TO SCOPE OF WORK, SERVICES & TERMS
3.1 These terms apply to the exclusion of any other terms and conditions of the Client.
3.2 Ellenom may amend these terms and conditions from time to time.
3.3 If the Client wishes to change the Scope of Work after accepting it, they must notify Ellenom. While Ellenom will try to accommodate revised requirements, this may result in changes to estimates, Fees, and timelines. Ellenom will notify the Client of any Fee revisions and will not proceed with changes unless the Client agrees in writing.
3.4 Ellenom may refuse a Client's proposed changes to the Scope of Work if it determines it cannot accommodate them.
3.5 Ellenom may decline requests for Additional Services for any reason. Where Ellenom accepts such requests, it will not begin Additional Services until the Client has accepted the relevant Scope of Work in writing, paid any deposit due, and signed an Additional Services Agreement if required.
3.6 Any errors or omissions in this Agreement, sales materials, quotations, or other documents issued by Ellenom may be corrected without liability.
3.7 Except as set out in this section, no variation to these terms will be effective unless made in writing and signed by both parties.
4. CORRECTION OF ERRORS
4.1 If the Client notifies Ellenom of any Errors during the performance of Services, Ellenom will endeavor to correct them.
4.2 If there are no Errors but the Client requests changes to the Deliverables outside the Scope of Work, section 3.3 will apply.
4.3 If Ellenom cannot correct an Error, it will refund a proportional amount of money already paid for the specific deliverable with the unfixable Error, less the cost of other work already completed. After making this refund, Ellenom will have no further liability regarding such Errors.
4.4 If Errors result from Client actions or omissions, Ellenom will provide reasonable assistance to remedy the defect but may charge for this assistance. If the Client is unwilling to pay, Ellenom is not obligated to provide further assistance.
5. CLIENT OBLIGATIONS
5.1 The Client agrees to:
5.1.1 Pay the Fees for Services and other sums due to Ellenom under this Agreement.
5.1.2 Fully cooperate with Ellenom in the provision of Services.
5.1.3 Understand that unless Ellenom has agreed in writing to provide Hosting Services, this Agreement does not include equipment, telecommunications, or other services necessary to host or access the Deliverables, and the Client is responsible for providing these.
5.1.4 Act in good faith toward Ellenom at all times.
5.1.5 Keep all passwords provided by Ellenom confidential.
5.1.6 Not interfere with the proper working of the Deliverables, including not attempting to circumvent security, tamper with, hack into, or disrupt any computer system, server, website, router, or internet-connected device of Ellenom.
5.1.7 Only use the Deliverables in accordance with the license granted in section 10.2 and applicable laws and regulations.
5.2 The Client acknowledges that Ellenom's ability to provide Services depends on the Client's full and timely cooperation and the accuracy of Client Content and other information. The Client agrees to provide complete and accurate Client Content and any other required information.
5.3 If the Client fails to provide Client Content or other required information promptly, Ellenom will not be liable for any resulting delay or failure to perform Services and reserves the right to:
5.3.1 Stop providing Services and charge for work completed to date and any wasted expenditure, including the cost of unused pre-allocated time slots; or
5.3.2 Change the Scope of Work to account for the missing information, with any resulting Fee changes to be paid by the Client.
6. CLIENT CONTENT
6.1 The Client is responsible for any Client Content submitted to Ellenom and must obtain all necessary licenses, permissions, and authorities for such content before submission.
6.2 Ellenom reserves the right to refuse to handle or remove from the Deliverables any Client Content that:
6.2.1 May be deemed offensive, illegal, or controversial; or
6.2.2 Ellenom reasonably suspects infringes any laws, regulations, or third-party rights (such as offensive or defamatory material or material that infringes intellectual property rights).
6.3 For website or app Deliverables developed by Ellenom, the Client acknowledges that Ellenom has no control over content placed on the Deliverables by visitors and does not monitor or moderate such content.
6.4 The Client will indemnify and hold Ellenom harmless against all claims, demands, costs, expenses, losses, and liabilities incurred by Ellenom from using Client Content, including any third-party claims.
7. FEES
7.1 Where no Fees are specified in the Commercial Terms Sheet or an Additional Services Agreement, Fees will be calculated on a time and materials basis at Ellenom's current rates, which may vary over time. Ellenom will keep timesheets of all work done for the Client, which will be binding on both parties.
7.2 The Client acknowledges that:
7.2.1 All quoted Fees are estimates only (unless expressly stated to be fixed) and may change due to the nature of the work. Estimated Fees are not binding on Ellenom and will be reviewed and adjusted if Scope Creep occurs.
7.2.2 Fees are calculated based on assumptions in the Commercial Terms Sheet and Scope of Work, and requirements may change as the Client's understanding of their needs evolves.
7.3 Ellenom reserves the right to increase Fees in the event of:
7.3.1 Scope Creep;
7.3.2 Incorrect or changing assumptions;
7.3.3 Client requests for amendments not in the Scope of Work;
7.3.4 Client approving a deliverable and then changing their mind;
7.3.5 Providing Additional Services;
7.3.6 Renewal of Hosting Services; and/or
7.3.7 Client delays or failures to perform their obligations.
7.4 Any Fee increases under section 7.3 will be calculated on a time and materials basis at Ellenom's current rates and invoiced monthly unless otherwise specified.
7.5 Ellenom's rates may change from time to time.
7.6 If Ellenom will incur expenses or third-party costs in providing Services, it will notify the Client in advance. These costs will be invoiced at the end of the month incurred and charged at the rate imposed by the relevant third party.
8. PAYMENT
8.1 Ellenom will invoice the Client as specified in the Commercial Terms Sheet or Additional Services Agreement. Unless agreed otherwise, where stage payments are agreed, the final payment is due upon completion of Deliverables and before going live or supplying files or assets.
8.2 The Client must pay all Fees and charges due on the date of Ellenom's invoice.
8.3 All Fees and charges exclude VAT and similar taxes, which are payable by the Client.
8.4 If the Client fails to make any payment when due, Ellenom may:
8.4.1 Suspend performance of all or any Services (including Hosting Services) and remove Deliverables until payment is made; and/or
8.4.2 Charge compensation and interest on overdue amounts at the statutory rate in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, or at 8.5% per annum above the Bank of England base rate, compounded quarterly; and/or
8.4.3 Retain any deposit already paid.
8.5 Until full payment is received, Ellenom will retain possession of any documents and title to any aspect of the Services and Deliverables that would otherwise belong to the Client.
8.6 Timely payment of Fees is essential to this Agreement.
8.7 The Client must pay all amounts due in full without any deduction, set-off, or withholding except as required by law.
9. WARRANTIES
9.1 Each party warrants to the other:
9.1.1 That it has full authority to enter into and perform this Agreement and has not entered into any arrangement that conflicts with this Agreement or limits its ability to fulfill its obligations.
9.1.2 That it has sufficient rights (including intellectual property rights) in the items to be delivered to enable the rights set out in this Agreement and has obtained all necessary licenses and consents.
9.2 The Client warrants that the Client Content is adequate for Ellenom to perform its obligations and acknowledges that Ellenom accepts no responsibility for Client Content.
9.3 If the Client has not engaged Ellenom for Hosting Services, the Client warrants that it has sufficient resources and expertise to host the Deliverables appropriately.
9.4 Ellenom makes no warranty regarding the quality, stability, or reliability of any third-party software, plugins, content management systems, APIs, or other third-party code on the Deliverables. The Client acknowledges that Ellenom cannot control changes made by third-party providers after installation, and such software is used at the Client's risk.
9.5 Ellenom makes no warranty to resolve Errors caused by browser or device updates released after completion of Services.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All intellectual property rights in the Deliverables and any methodologies used by Ellenom remain vested in Ellenom or its licensors ("Ellenom IPRs").
10.2 If any Ellenom IPRs are acquired by the Client, the Client assigns (present and future) all such rights to Ellenom and will procure the assignment of such rights to Ellenom.
10.3 Subject to the Client's compliance with this Agreement and payment of Fees, Ellenom grants the Client a royalty-free, non-transferable, worldwide, non-exclusive license to use the Deliverables and related intellectual property rights in its business.
10.4 Ellenom acknowledges that ownership of Client Content remains with the Client or its licensors. The Client grants Ellenom a non-exclusive license to use Client Content for providing the Services.
10.5 Ellenom waives any moral rights in copyright work created for the Client under this Agreement.
10.6 Nothing in this Agreement prevents Ellenom from using expertise acquired during the performance of this Agreement in providing services to other companies or for itself.
10.7 The Client may not sub-license any rights or licenses granted by Ellenom without Ellenom's prior written consent.
10.8 No license is given to access, copy, or use the source code of Deliverables. The Client shall not reverse engineer, translate, disassemble, hack, decompile, modify, or copy the Deliverables except as permitted by law. Breach of this clause constitutes a material breach of this Agreement.
11. SUPPORT AND MAINTENANCE
Unless specifically agreed in the Scope of Work, Commercial Terms Sheet, or an Additional Services Agreement, Ellenom will not provide support or maintenance services.
12. DATA MIGRATION
12.1 If Ellenom agrees to assist with data migration, this will be charged at Ellenom's current rates.
12.2 The Client acknowledges that Ellenom cannot guarantee how long data migration will take. Any timeframe provided is an estimate only and subject to review. Ellenom will update the Client on migration progress regularly.
13. HOSTING SERVICES
13.1 If Ellenom provides Hosting Services, these will use third-party ISP servers.
13.2 Ellenom will use reasonable efforts to select reputable third-party ISPs but is not responsible for unavailability or interruptions caused by a third-party ISP, its servers, equipment, networks, or public networks.
13.3 Occasionally, Ellenom may need to transfer Deliverables to a different third-party ISP.
13.4 Either party may terminate Hosting Services with three months' written notice.
13.5 Hosting Services will be charged monthly at Ellenom's current rates.
13.6 Ellenom may suspend Hosting Services if the Client fails to pay any sum when due.
13.7 Ellenom may terminate Hosting Services if circumstances arise that make it unable to provide such services, including termination of arrangements with relevant third-party ISPs.
14. LIMITATION OF LIABILITY
14.1 Subject to section 14.4, Ellenom's total liability for all claims arising from this Agreement, the Deliverables, or Services is limited to the total Fees (excluding VAT) paid by the Client.
14.2 Notwithstanding any other provision, but subject to section 14.4, Ellenom shall have no liability for:
14.2.1 Direct or indirect loss of profit, revenue, business, contracts, opportunities, anticipated savings, data, goodwill, reputation, or use;
14.2.2 Indirect or consequential loss or damage; or
14.2.3 Claims arising from third-party claims against the Client.
14.3 The term "however arising" in section 14.2 covers all causes of liability including misrepresentation, negligence, breach of statutory duty, other tort, breach of contract, or restitution.
14.4 These limitations apply regardless of whether the loss was foreseeable but do not apply where prohibited by law. In particular, nothing affects liability for:
14.4.1 Death or personal injury caused by negligence;
14.4.2 Fraudulent misrepresentation; or
14.4.3 Breach of obligations implied by the Supply of Goods and Services Act 1982.
14.5 Except where Services or Deliverables are sold to a consumer (as defined by the Unfair Contract Terms Act 1977), all warranties, conditions, and terms not expressly set out in this Agreement are excluded to the extent permitted by law.
15. LIMITATION PERIOD FOR CLAIMS
15.1 Any claims the Client wishes to bring must be commenced within one year from the date of the event giving rise to the claim, or one year from when the Client knew or should have known of the facts giving rise to the claim, whichever is later.
16. FORCE MAJEURE
Neither party will be liable for failures or delays resulting from circumstances beyond their reasonable control, including acts of god, war, civil commotion, or industrial disputes that could not have been prevented or overcome. If either party is prevented from performing obligations for more than three months due to such circumstances, the other party may terminate this Agreement with one month's written notice.
17. CONFIDENTIALITY
17.1 For five years after this Agreement ends, each party will treat as confidential all information about the business, finances, technology, and affairs of the other ("Confidential Information").
17.2 Each party will use at least the same degree of care used to protect its own confidential information to prevent disclosure of the other party's Confidential Information.
17.3 Each party will promptly notify the other of any actual or suspected misuse or unauthorized disclosure of the other's Confidential Information.
17.4 These confidentiality provisions do not apply to information that: (i) is in the public domain other than through breach of confidentiality; (ii) is obtained from a third party without breach of confidentiality; or (iii) must be disclosed by law or court order.
17.5 The parties will comply with the Data Processing Terms and Conditions (as updated from time to time).
18. TERMINATION
18.1 Either party may terminate this Agreement with one month's written notice, except where Ellenom provides Retained Services, in which case three months' notice is required.
18.2 Ellenom may terminate this Agreement immediately by written notice if:
18.2.1 The Client commits a material breach (including failure to pay invoices) that, if capable of remedy, is not remedied within 30 days of notification;
18.2.2 The Client behaves in a manner Ellenom deems threatening, abusive, or otherwise inappropriate; or
18.2.3 Ellenom determines that its relationship with the Client has broken down to the extent that it cannot continue providing Services.
18.3 The Client may terminate this Agreement immediately by written notice if Ellenom materially fails to provide all or a substantial part of the Services. The Client must promptly notify Ellenom of such failure, and Ellenom will have 30 days to remedy it. If not remedied, the Client may terminate the affected part of the Services, while unaffected parts continue.
18.4 Either party may terminate if the other becomes insolvent, enters administration or bankruptcy, cannot pay debts, ceases trading, or has legal processes levied against assets that are not discharged within three Business Days.
19. CONSEQUENCES OF TERMINATION
19.1 On termination for any reason, the Client must immediately pay all Fees, expenses, and other sums due to Ellenom.
19.2 On termination (except under section 18.2) or expiry of Hosting Services without renewal, once all fees are paid:
19.2.1 The Client's further use of Deliverables will be subject to the license in section 10 and other relevant terms;
19.2.2 Ellenom will return Client Content and provide an electronic copy of the Deliverables; and
19.2.3 Ellenom will provide reasonable assistance to transfer Deliverables to another hosting provider, subject to payment of Ellenom's expenses and time. The Client acknowledges that modifications may be needed which could affect functionality.
19.3 On termination by Ellenom under section 18.2:
19.3.1 Licenses granted by Ellenom to the Client will terminate immediately; and
19.3.2 The Client must cease all use of the Deliverables.
19.4 Subject to section 8.5, on termination, each party will return or destroy all licensed materials and Confidential Information of the other party.
19.5 Termination does not affect rights, liabilities, or remedies accrued before termination, nor provisions intended to continue after termination.
19.6 Sections 10 (Intellectual Property Rights) and 14 (Limitation of Liability) survive termination.
20. PUBLICITY
20.1 The Client agrees that:
20.1.1 Ellenom may reference the Client as a client in publicity materials;
20.1.2 Ellenom may publicize its provision of Services and Deliverables to the Client; and
20.1.3 For websites, mobile applications, or similar Deliverables:
(a) Ellenom may include a credit on the Deliverables;
(b) Ellenom may use Client Content on its website and in promotional material; and
(c) Web statistics relating to the Deliverables may be used in promotional case studies.
20.2 The Client will participate in testimonials for Ellenom when requested, including video testimonials, and will provide necessary permissions for Ellenom to use these testimonials.
21. SUB-CONTRACT
21.1 Ellenom may delegate or sub-contract any Services to third parties without the Client's consent.
21.2 Despite such delegation, Ellenom remains responsible for ensuring Services are performed according to this Agreement.
21.3 During this Agreement and for 18 months afterward, the Client will not solicit, entice away, or employ any employee, consultant, subcontractor, or officer of Ellenom.
21.4 The Client will not contract directly with any employee, consultant, or sub-contractor of Ellenom or do anything that would circumvent Ellenom's entitlement to Fees.
22. GENERAL
22.1 Nothing in this Agreement creates a partnership, joint venture, employment relationship, or agency between the parties.
22.2 This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements relating to its subject matter. If there is a conflict between the Scope of Work and these terms, the Scope of Work prevails.
22.3 Each party confirms it has not relied on any statement or representation not expressly included in this Agreement and shall have no remedy for any statement or representation not included unless made fraudulently.
22.4 No failure or delay in exercising rights under this Agreement will operate as a waiver of those or other rights.
22.5 If any provision is found invalid, unlawful, or unenforceable, that provision shall be deemed removed, and the remainder of the Agreement shall continue in effect.
22.6 This Agreement does not create rights for any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
22.7 Each party shall, at the other's cost, take all reasonable steps to execute documents the other may require to give full effect to this Agreement.
22.8 Neither party may assign, transfer, charge, or license its rights or obligations under this Agreement without the other's consent.
22.9 This Agreement shall be governed by English law, and the parties agree that the courts of England and Wales have exclusive jurisdiction over all disputes arising from it.
22.10 The rights and remedies under this Agreement are in addition to those provided by law. Any variation must be in writing and agreed by both parties. This Agreement may be executed in counterparts.
22.11 Notices under this Agreement must be in writing and may be delivered by hand, pre-paid first-class post, recorded delivery, or email attachment.
22.12 A party's address for notices is as set out in the Commercial Terms Sheet or as otherwise designated. Notices are deemed received when delivered by hand, 48 hours after posting if sent by pre-paid first-class post or recorded delivery, or if sent by email, at the time of sending (if sent during business hours) or at the start of the next business day (if sent outside business hours).
COMPANY DETAILS
Ellenom
Email: hello@ellenom.com
Address: 20 Saint Dunstan's Hill, London EC3R 8HL, United Kingdom
Company Registration: 14536497