Terms of Business

  • 1DEFINITIONS AND INTERPRETATION

    • 1.1In these terms and conditions the following words shall have the following meanings:
      • Additional Services
        means any services provided by Xanthe Studios to the Client in addition to the Services and which are not specified in the Proposal;
      • Client
        means the person who or business which commissions Services from Xanthe Studios;
      • Client Content
        means the information, data and other content provided by the Client to Xanthe Studios for incorporation in the Website (including all copy, graphic images, registered company logos, names and trademarks);
      • Domain Name
        means the root address of a website, e.g. www.xanthestudios.co.uk All such names must be registered with the appropriate naming authority, which will usually charge a fee;
      • Downtime
        means time when the Website is not accessible via the internet. This may be because of a technical failure of the Host or because work is being carried out on the site;
      • Fees
        means the fees for the Services as set out in the Proposal and including all additional sums and charges which may be due to Xanthe Studios under this Contract;
      • Force Majeure Event
        means any event beyond the reasonable control of a party including software, hardware or electrical failure, acts of God including but not limited to fire, flood, earthquake or other natural disaster, war, terrorist attack, riot, civil commotion, industrial dispute, interference by civil or military authorities, malicious damage, compliance with any law, or non-performance by suppliers or subcontractors, interruption or failure of utility service, including but not limited to electric power and that failure could not have reasonably been prevented or overcome;
      • Host
        the company on whose system the Website physically resides;
      • Hosting Services
        means the hosting of the Website on a Third Party ISPs server as described in clause 6.1;
      • IPR
        means intellectual property rights including any patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, 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 in any part of the world;
      • Proposal
        means the document referred to in clause 2.1;
      • Search Engine
        means a website which contains a directory of websites on the internet enabling users to find websites by subject matter classification;
      • Services
        means the work to be delivered by Xanthe Studios to the Client as specified in the Proposal;
      • Third Party ISP
        means a third party internet service provider used by Xanthe Studios to provide the Hosting Services;
      • Website
        means the website to be designed by Xanthe Studios in accordance with the Contract;
      • Xanthe Studios
        means the business located at 9 Cwrt Neuadd Wen, Aberbargoed, Bargoed CF81 9DL.
    • 1.2 In these Terms and Conditions, unless the context otherwise requires:
      • 1.2.1the headings and bold type face are inserted for convenience only and shall not affect the interpretation of these Terms and Conditions;
      • 1.2.2references to clauses are references to clauses of this Contract;
      • 1.2.3words in the singular include the plural and vice versa;
      • 1.2.4a reference to any gender includes a reference to all genders or, where appropriate, is to be read as a reference to the opposite gender;
      • 1.2.5a reference to a statute or statutory provision shall include a reference to any subordinate legislation made under the relevant statute or statutory provision and is a reference to that statute, provision or subordinate legislation as from time to time amended, consolidated, modified, re-enacted or replaced.
  • 2Proposal

    • 2.1Subject to clause 2.5, following receipt of a request for Services from the Client, Xanthe Studios will draw up a Proposal for the Services and shall deliver this to the Client for approval. The Client shall provide Xanthe Studios with all the information which Xanthe Studios may reasonably require in order to prepare the Proposal and accepts that Xanthe Studios is not liable for any errors, inaccuracies or omissions in or from the Proposal which result from the Clients failure to provide or delay in providing the necessary information. If the Proposal is not accepted within 30 days of being delivered to the Client, the Proposal, together with any quotations, estimates, related terms and conditions and deliverables, may be subject to amendment, change or substitution.
    • 2.2Any dates and times for performance of the Services by Xanthe Studios as set out in the Proposal or in any other document or discussion between the parties are estimates only and time shall not be of the essence in respect of these. Xanthe Studios shall not be liable for any loss, damage, cost or expense caused directly or indirectly by any delays in performance of the Services.
    • 2.3The Client shall be entitled to reject a Proposal or request amendments to a Proposal up until the date on which it accepts such Proposal.
    • 2.4If the Client wishes to proceed, it must accept the Proposal and provide written confirmation of acceptance to Xanthe Studios in writing or by email at which point a legally binding contract will be formed between the Client and Xanthe Studios for the provision of the Services. These terms and conditions (or, if different, the latest version of these terms and conditions available to view at www.xanthestudios.co.uk) apply to the supply of all services by Xanthe Studios and, together with the Proposal, form the contract between the Client and Xanthe Studios (the Contract).
    • 2.5Xanthe Studios reserves the right to decline a request for Services for any reason and at any time until such date as a Proposal is accepted by the Client.
    • 2.6If the Client wishes to change the Proposal at any time following its acceptance of the Proposal, it shall notify Xanthe Studios of the proposed amendments. Xanthe Studios will use reasonable endeavours to accommodate the Clients revised requirements but the Client acknowledges that this may result in a change in any estimate of the Fees and turnaround times which it has been given by Xanthe Studios. Xanthe Studios shall notify the Client of any revision to the Fees and shall not be obliged to proceed with any amendments to the Proposal unless the Client agrees to accept the revised Fees. If Xanthe Studios determines, in its sole discretion, that it cannot accommodate a Clients proposed changes to the Proposal, it reserves the right to refuse the Clients request.
  • 3Additional services

    Whenever the Client places an order for Additional Services the Client shall be deemed to have accepted the latest version of these terms and conditions current at the date of that order and which shall be incorporated into and form part of the contract formed once that order has been accepted by Xanthe Studios. Acceptance of any such order from the Client shall occur either when Xanthe Studios confirms acceptance to the Client in writing or email, or if sooner, the commencement of the provision of the Services by Xanthe Studios. The Client acknowledges that requests for Additional Services may affect any estimated delivery dates and Xanthe Studios is entitled to adjust any estimated delivery dates further to accommodate the Clients requests.
  • 4Fees

    • 4.1Unless stated otherwise on the Proposal, a non-refundable deposit of 50% of the total fee payable under the Contract is due immediately upon receipt of the first invoice. Xanthe Studios reserves the right not to commence the Services until the Client has given its written acceptance of the Proposal and has paid any deposit that may be due.
    • 4.2Unless stated otherwise on the Proposal, after the Client has paid the deposit due, the remaining balance shall be invoiced when the Services have been performed to the reasonable satisfaction of the Client and on sign-off of the working Website prior to the Website going-live but subject to the terms of clause 10.3 and clause 10.4. Such invoice is payable within 14 days of receipt. Unless otherwise stated in the Proposal, the fee quoted in the Proposal does not include the cost of domain registration, hosting of the Website, email services, video and image stock licences and any additional licences required for the operation/running of the Website. On payment of the Fees in full, Xanthe Studios shall grant the Client the rights to use the Website as set out in clause 13.
    • 4.3For all overdue amounts, Xanthe Studios reserves the right to claim statutory interest at 8% above the Bank of England reference rate in force on the date the debt becomes overdue and at any subsequent rate where the reference rate changes and the debt remains unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. In the event that it is necessary for Xanthe Studios to incur costs (including legal fees and the costs of instructing a debt collection agent) in recovering unpaid amounts, the Client shall be liable to pay such costs in full.
    • 4.4Xanthe Studios reserves the right to suspend any ongoing Services until payment is received in full and all outstanding debt has been cleared. For the avoidance of doubt, this includes, the right to withhold the Client's Website from going live or to remove the client's Website or other services from viewing on the internet if payment is not made in full in accordance with the Contract, subject to Xanthe Studios giving the Client seven (7) days' notice before removing the Website from the internet. If Xanthe Studios removes the Website from the internet due to non-payment this does not remove the Clients obligation to pay the due amount. Xanthe Studios accepts no liability for any losses that the Client incurs if the Website is removed from the internet due to non-payment.
    • 4.5If the Client is paying for services, such as Website Hosting, these will be renewed and invoiced automatically every 12 or 24 months, as specified in the Proposal. The Client will be required to pay pursuant to the payment plan specified in the Proposal, either paying annually in advance or by way of equal monthly instalments in advance throughout the year. The Client may cancel such services by submitting a cancellation request (by post or email) to Xanthe Studios no less than 14 days prior to the date on which the contract would normally be renewed.
  • 5Third parties

    Xanthe Studios reserves the right to assign subcontractors to the project as required. Where subcontractors are used, Xanthe Studios reserves the right to share any information that is necessary for the work to be carried out. Xanthe Studios can take no responsibility for services provided by third parties through Xanthe Studios or otherwise, including the Hosting of the Client's Website and email services if through a third party, although Xanthe Studios will endeavour to ensure that Downtime is kept to a minimum.
  • 6Hosting and mailbox services

    • 6.1Where Xanthe Studios has agreed to provide the Hosting Services for the Website these shall be provided by Xanthe Studios using the servers of Third Party ISPs. Where Xanthe Studios has agreed to provide email services to the Client these shall be provided via a third party. Xanthe Studios will set up one or more email accounts for the Clients domain name (e.g. [email protected]), as described in the Proposal and the Clients use of such email services will also be subject to the terms and conditions of the third party provider of email services. Xanthe Studios shall use reasonable endeavours to select reputable Third Party ISPs and third party providers of email services but shall not be responsible for any unavailability or interruption to the Website or to email services caused by a Third Party ISP or third party provider of email services, its/their servers, other equipment, networks or any public network.
    • 6.2Occasionally it may be necessary for Xanthe Studios to transfer the Website to a different Third Party ISP.
    • 6.3Either party may terminate the Hosting Services on one months prior written notice.
    • 6.4The Hosting Services shall be charged for annually or monthly in accordance with Xanthe Studioss then current rates as advised by Xanthe Studios to the Client.
    • 6.5Xanthe Studios reserves the right to suspend the Hosting Services at any time where the Client has failed to pay any sum when due to Xanthe Studios under the Contract.
    • 6.6Xanthe Studios reserves the right to terminate the Hosting Services if circumstances arise which render it unable to provide such services including termination of its arrangements with relevant Third Party ISPs.
    • 6.7Installation on the internet is limited to the uploading of all necessary files to the Host, configuration, build, and testing of functionality. No registration of the Website with Search Engines will be undertaken unless otherwise agreed with the Client.
  • 7Maintenance and correction of errors

    • 7.1Unless otherwise stated in the Proposal, Xanthe Studios takes no responsibility for the functionality or maintenance of the Website after completion of the Services. Errors (both technical and typographical) attributable to Xanthe Studios will be corrected free of charge for 12 months after completion if hosted by a third party, or indefinitely while hosted by Xanthe Studios. If hosted by a third party, and the initial 12 months period has lapsed, Xanthe Studios reserves the right to charge a fee based on its hourly rate at the time. The hourly rate is currently £30.00.
    • 7.2If following completion of the Services, the Client requests that Xanthe Studios corrects errors for which Xanthe Studios is not responsible, including, but not limited to malicious modification of the Website by the Client or a third party and any typographical errors contained in materials provided to Xanthe Studios by the Client, Xanthe Studios reserves the right to charge a fee for correcting such errors based on its hourly rate at the time. The hourly rate is currently £30.00.
  • 8Software failure/misuse

    Under no circumstances will Xanthe Studios be responsible or liable for financial or other loss or damage caused by the failure or use or misuse of its software. The Client should ensure that data on their Website is regularly backed up and that a contingency plan is in place to minimize possible losses as a result of software failure. If hosting on the Xanthe Studios servers, backup systems are in place, but are not a guarantee that the Clients data will remain safe.
  • 9Serach engines

    Xanthe Studios does not guarantee listings on Search Engines and the Client accepts that Search Engines, and not Xanthe Studios, determine who they list and do not list. The Client further understands that there is no guaranteed placement or rank on the Search Engines and that a new website may never even appear on Search Engines at all. Xanthe Studios does not control Search Engines algorithms which can change daily.
  • 10Completion of services

    • 10.1Xanthe Studios warrants that it will complete the Services in accordance with its Standard Terms and Conditions to the specifications previously agreed with the Client. Xanthe Studios will not charge more than the amount previously agreed unless the Client has varied the specifications of the Services after the Proposal has been accepted. Xanthe Studios will not undertake changes to the specifications of the Services which would increase the cost, without prior written authorisation from the Client. Changes to the specifications of the Services will be carried out based on Xanthe Studios hourly rate, which is currently £30.00, or such other rate or fixed fee as may be specified in the Proposal or in any revised Proposal.
    • 10.2The Client is to supply all materials and information required for Xanthe Studios to complete the Services in accordance with the agreed specification. Such materials may include, but are not limited to, photographs, written-copy, logos and other printed materials. Where the Client's failure to supply such materials leads to a delay in completion of the work, Xanthe Studios has the right to extend previously agreed deadlines for the completion of the Services by a reasonable amount. Where the Client's failure to supply materials prevents progress on the Services for more than 21 days, Xanthe Studios has the right to invoice the Client for any part or parts of the Services already completed.
    • 10.3On completion of the Services, the Client will be notified and have the opportunity to review the work delivered by Xanthe Studios. The Client should notify Xanthe Studios, in writing (via post or email), of any unsatisfactory points within 14 days of receipt of such notification. Once approved, or deemed approved, work cannot subsequently be rejected, and the Contract will be deemed to have been completed and the remaining balance under clause 4.2 will become due.
    • 10.4If the Client rejects the Services upon completion, or will not approve subsequent Services performed by Xanthe Studios to remedy any points reported by the Client as unsatisfactory, and Xanthe Studios considers that the Client is unreasonable in the Clients repeated rejection of the Services, the contract will be deemed to have expired and Xanthe Studios can take any legal measures to recover both payment for the completed Services and reasonable expenses incurred in recovering payment.
    • 10.5Unless specified otherwise in the Proposal, the Website will include and the Client shall maintain a hyperlink from the Website homepage to the Xanthe Studios homepage in the form, site developed by Xanthe Studios or similar agreed form. Xanthe Studios and its subcontractors retain the right to link to the Client's website, display graphics and other web design elements as examples of their work in their respective portfolios, as well as to mention the Client in publicity to promote Xanthe Studios, unless stated otherwise in the Proposal.
  • 11Confidentiality

    • 11.1Each party acknowledges that in connection with this Contract it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation initial concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Xanthe Studios (Confidential Information). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal documentation except as may be required by a court or governmental authority.
    • 11.2Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
  • 12Intellectual property

    • 12.1Offers and proposals made by Xanthe Studios to potential clients should be treated as trade secrets and remain the property of Xanthe Studios. Such offers and proposals or the information contained within them must not be passed to third parties or publicly disseminated without prior written authorization from Xanthe Studios. This includes, but is not limited to, technical features, functionality, aspects of the design and pricing information.
    • 12.2The Client warrants to Xanthe Studios that it owns all IPR in, or otherwise has full right and authority to permit the use of the Client Content having obtained all the necessary licences, authorisations and consents in respect of the use of all Client Content it supplies to Xanthe Studios for inclusion in the Website and that the inclusion of such material on the Website would not infringe any applicable law (civil or criminal), regulations or third party rights. The Client further warrants to Xanthe Studios that it will maintain and renew, as appropriate, all necessary licences, authorisations and consents which are necessary for the full implementation of the Contract.
    • 12.3The Client confirms that to the best of the Clients knowledge and belief the Client Content does not contain anything which may reasonably be considered blasphemous, defamatory or obscene.
    • 12.4The Client shall indemnify and hold harmless Xanthe Studios at all times from and against all claims, demands, costs (including legal costs on a full indemnity basis) expenses, losses and liabilities incurred by Xanthe Studios as a result of Xanthe Studios use of the Client Content including any third party claim arising out of the Client Content.
    • 12.5Xanthe Studios makes no warranty as to the quality, stability or reliability of, nor does it accept any liability for, any third party software, plug ins, content management systems, application programming interfaces, or other third party provided code (whether open source or otherwise) on the Website for any purpose whether provided by Xanthe Studios or otherwise. The Client acknowledges that Xanthe Studios is unable to control changes or other modifications that may be made to third party software by the relevant third party provider after the date upon which it is installed on the Website and therefore this is provided at the Clients own risk.
    • 12.6Any Domain Name obtained will belong to the Client. The Client agrees to indemnify Xanthe Studios, including any incidental costs, against any claims that a Domain Name applied for, or obtained, violates the intellectual property rights of a third party. The Client warrants that the domain name sought is not a trademark of a third party.
  • 13Licensing

    • 13.1Subject to compliance by the Client with the Contract and payment in full of the Fees and charges for any Additional Services, Xanthe Studios grants the Client a royalty-free, worldwide, non-exclusive perpetual licence to use the Website in its business.
    • 13.2All IPRs in any methodologies and technologies provided by Xanthe Studios for the Website and Services shall remain vested in Xanthe Studios or its licensors. Xanthe Studios waives any moral rights as defined in sections 77 to 83 of the Copyright, Designs and Patents Act 1988 subsisting in any copyright work created for the Client under the Contract.
    • 13.3Nothing in the Contract shall be taken to prevent Xanthe Studios from using any expertise acquired or developed during the performance of the Contract in the provision of services for other companies or on its own behalf.
    • 13.4None of the rights or licences granted by Xanthe Studios to the Client are sub-licensable by the Client.
    • 13.5No licence or other right is given to access, copy or make any use of the source code to the Website. The Client shall not, and shall not permit any third party to reverse engineer, translate, disassemble, hack, decompile, modify, prepare derivative works based on, or copy or exploit the Website, except to the extent expressly permitted by applicable law. Breach of this clause shall constitute a material breach of the Contract.
    • 13.6Xanthe Studios acknowledges the IPR of the Client. Information passed in written form to Xanthe Studios and that the Client has indicated is confidential or a trade secret, will not be published or made available in any other way to third parties without the prior written consent of the Client.
  • 14Termination

    • 14.1If the Client is not taking ongoing services from Xanthe Studios, this Contract will terminate automatically upon completion of the Services by Xanthe Studios, unless otherwise extended by the parties in writing. Otherwise, this Contract shall continue unless or until terminated by either Party in accordance with the terms of this Contract.
    • 14.2Notwithstanding clause 14.1 above, either party may terminate the Contract immediately in the event that the other party:
      • 14.2.1commits a material or persistent breach of its obligations under this Contract which is incapable of remedy (and non-payment shall be deemed a material breach);
      • 14.2.2fails to remedy a breach of any of its obligations under this Contract, where it is capable of remedy, or persists in any breach of any of its obligations under this Contract after having been required in writing to remedy or desist from such breach within a period of 30 days;
      • 14.2.3is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
      • 14.2.4makes or proposes any voluntary agreement or enters into a compromise for the benefit of its creditors;
      • 14.2.5being a company, becomes subject to an administration order or goes into liquidation, (other than for the purpose of amalgamation or reconstruction);
      • 14.2.6has a receiver appointed to administer any of its property or assets
      • 14.2.7ceases or threatens to cease to carry on business; or
      • 14.2.8has failed to meet expectations. In this case Xanthe Studios shall be compensated for the Services performed through to the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Xanthe Studios or Xanthe Studios agents as of the date of termination, whichever is greater; and the Client shall pay within 14 days of the date of termination all fees incurred through and up to, the date of termination. Upon full payment of such compensation, Xanthe Studios will return the Client Content to the Client, and will provide to the Client an electronic copy of the Website (including all content on the Site) and the Clients further use of the Website following termination shall be subject to the licence granted in clause 13.1 and all other relevant terms of the Contract. Xanthe Studios shall provide such assistance as is reasonably requested by the Client to transfer the Website to another provider of hosting services selected by the Client, subject to the payment of Xanthe Studios expenses reasonably incurred in relation to such transfer. The Client acknowledges that Xanthe Studios shall need to modify the Website and this may have an impact on the functionality of the Website.
    • 14.3In addition, Xanthe Studios may terminate this Contract if the Client (or any individual employed by or otherwise related to or acting on behalf of the Client) behaves in a manner which Xanthe Studios deems (in its absolute discretion) to be threatening, abusive or otherwise inappropriate.
    • 14.4On the termination of the Contract other than under clause 14.1 above, the Client undertakes to return promptly any test examples of the Website and any document or other printed materials which have been delivered to the Client by Xanthe Studios and to return or destroy any copies thereof (as requested by Xanthe Studios).
    • 14.5Any termination of the Contract shall be without prejudice to any rights accrued in favour of either Party and will not affect those provisions of the Contract which are by their construction intended to survive such termination.
  • 15Liability

    • 15.1Xanthe Studios shall not be liable for any loss or damage of whatsoever nature suffered by the Client arising out of or in connection with any breach of this Contract by the Client or any act, misrepresentation, error or omission made by the Client or on the Clients behalf.
    • 15.2Xanthe Studios will not be liable for any indirect loss, consequential loss, loss of profit, revenue, data or goodwill howsoever arising suffered by the Client or for any wasted management time or failure to make anticipated savings or liability the Client incurs to any third party arising in any way in connection with this Contract or otherwise whether or not such loss has been discussed by the parties pre-Contract or for any account for profit, costs or expenses arising from such damage or loss.
    • 15.3No matter how many claims are made and whatever the basis of such claims, Xanthe Studios' maximum aggregate liability to the Client under or in connection with this Contract in respect of any direct loss (or any other loss to the extent that such loss is not excluded by other provisions in this Contract) whether such claim arises in contract or in tort shall not exceed a sum equal to the fees paid by the Client for the Services in relation to which the Clients claim arises during the 12 month period prior to such claim. However, nothing in this Contract shall apply so as to restrict liability for death or personal injury resulting from the negligence of Xanthe Studios, its employees or its sub-contractors.
    • 15.4Xanthe Studios shall not be liable for any interruptions to the Services or outages arising directly or indirectly from:
      • 15.4.1interruptions to the flow of data to or from the internet;
      • 15.4.2changes, updates or repairs to the network or software which it uses as a platform to provide the Services;
      • 15.4.3the effects of the failure or interruption of Services provided by third parties;
      • 15.4.4a Force Majeure Event or other factors outside of Xanthe Studios' reasonable control. If the Force Majeure Event prevents Xanthe Studios from providing any of the Services for a period exceeding three (3) months, the Client shall have the right to terminate this Contract immediately by giving written notice to Xanthe Studios;
      • 15.4.5the Clients actions or omissions (including, without limitation, breach of the Client s obligations set out in the Contract) or those of any third parties;
      • 15.4.6problems with the Clients equipment and/or third party equipment;
      • 15.4.7interruptions to the Services requested by the Client.
    • 15.5Xanthe Studios reserves the right to use whoever it feels appropriate at the time for third party software and services and to alter its prices as necessary without prior notice and without affecting existing contractual pricing agreements.
  • 16General

    • 16.1Entire agreement and previous contracts
      Each party on behalf of itself acknowledges and agrees with the other party that this Contract (together with any documents referred to in it) constitute(s) the entire agreement and understanding between the Client and Xanthe Studios and supersedes any previous agreement between them relating to the subject matter of this Contract. Nothing in this Contract shall, however, operate to limit or exclude any liability for fraud.
    • 16.2Governing law and jurisdiction
      This Contract shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts and tribunals of England and Wales over any claim or matter arising under or in connection with this Contract.
    • 16.3Survival of terms
      Each of the provisions in this Contract are separate and severable and, in the event of any such provision (including the defined expressions in clause 1.1) being determined as being unenforceable in whole or in part for any reason, such unenforceability shall not affect the enforceability of the remaining provisions or, in the case of part of a provision being unenforceable, the remainder of that provision.
    • 16.4Changes to Terms and Conditions
      Xanthe Studios may amend these terms and conditions from time to time. The Client will be informed of revisions as and when they are issued. The latest version will be that posted on Xanthe Studios website at: www.xanthestudios.co.uk Except as set out in this clause no variation of the Contract shall be effective unless it is made in writing and signed by both parties.