1.) Interpretation
1.1) The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).
Content: if included in the Services to be provided in accordance with the Order Form, the Content written for the Customer’s website on request by the Customer;
Contract: the Customer’s purchase order and the Supplier’s acceptance of it, or the Customer’s acceptance of a quotation for Services by the Supplier under condition 2.2
Customer: the person, firm or company who purchases Services from the Supplier;
Customer’s Pre-existing Materials: All Documents, information and materials provided by the Customer which existed prior to the commencement of the contract including data, graphic logos and files.
Deliverables: All Documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts).
Document: Includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Hosting Management Charge: the management charge payable in respect of the Hosting Services, where Hosting Services are provided by the Supplier
In-put Material: All Documents, information and materials provided by the Customer relating to the Services including (without limitation): the Supplier’s website’s file transfer protocol (FTP) host name, user name and password (FTP Details); a list of key phrases to be utilised in the search engine option; computer programs, data, reports and specifications; any text in electronic format and any graphics in high quality print suitable for scanning or electronically in .gif, .jpeg. .png or .tiff format; and any other details required in the Order Form
Intellectual Property Rights: All patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including 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
Order Form: The Supplier’s order form to purchase the Services
Pre-existing Materials: All Documents, information and materials provided by the Supplier relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports, graphic logos and specifications
Project Plan: a plan detailing the Services to be provided to the Customer including:
(a) where Content is to be provided, the number and frequency with which the articles should be provide and the subject or those articles;
(b) where website design and development services are to be provided, the agreed design specification;
(c) where search engine optimisation services are to be provided the key phrases to be used in the provision of the services attached to the Order Form, and
(d) where telemarketing or email marketing services are required, those detail of the Services to be provided. Services: the services to be provided by the Supplier under the Contract as set out in the Order Form
Supplier: Vibe Graphics Limited a company incorporated in England and Wales with registration number 5253905 whose registered office is at 792 Halifax Road, Hightown, Liversedge, West Yorkshire, WF15 8HG
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2) Headings in these conditions shall not affect their interpretation.
1.3) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4) The schedules, if any, form part of the Contract.
1.5) A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.6) A reference to writing or written includes faxes but not e-mail.
1.7) Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.8) References to conditions and schedules are to the conditions and schedules of the Contract.
2.) Application of Conditions
2.1) These Conditions shall:
2.1.1) Apply to and be incorporated into the Contract.
2.1.2) Prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, brief or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing
2.2) The Customer’s purchase order, or the Customer’s acceptance of a quotation for Services by the Supplier, constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than:
2.2.1) by a written acknowledgement issued and executed by the Supplier.
2.2.2) (if earlier) by the Supplier starting to provide the Services, when a contract for the supply and purchase of the Services on these Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
2.3) Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.
2.4) If the Customer is contracting as a consumer, it shall benefit from a cooling off period and may cancel a Contract at any time within seven working days, beginning on the Commencement Date by notice in writing to the Supplier. In this case, the Customer will receive a full refund of the price paid for the Services.
Websites are required for any types of business, but its look depends upon the type of business you own. In case of a company which is designing websites, the look would be less of creative and more of corporate and professional. Similarly, in case of Band website development, the look and feel of the design would be cool, creative and unique. You can even highlight your portfolio on the website. It will help in improving your online visibility and would also increase the viewers.
3.) Commencement and Duration
3.1) The Services supplied under the Contract shall be provided by the Supplier to the Customer from the date specified in the Order Form (Commencement Date).
3.2) Subject to condition 15, the Services supplied under the Contract shall continue to be supplied for a period of 1 year (Initial Term) During the final months of the Initial Term the Supplier shall contact the Customer to inform the Customer that the contract is due to expire and to negotiate the renewal of the contract. The Supplier shall continue to provide the Services and the Customer shall continue to pay the Price (at the same monthly amount) until such time as the Supplier and the Customer agree the terms of the renewal of the contract or 30 days after the expiry of the Initial Term (whichever is earlier)
4.) Supplier’s Obligations
4.1) The Supplier shall use reasonable endeavours to deliver the Services and the Deliverables to the Customer, in accordance in all material respects with the Order Form.
4.2) The Supplier shall use reasonable endeavours to meet any performance dates specified in the Order Form.
4.3) It is acknowledged that the Supplier has given no warranties, representations or guarantees regarding the outcome or predicted results produced by the Services.
5.) Customer’s Obligations
General
5.1) The Customer shall:
5.1.1) Co-operate with the Supplier in all matters relating to the Services.
5.1.2) provide to the Supplier, in a timely manner, such In-put Material and other information as the Supplier may require and ensure that it is accurate in all material respects. . If the customer fails to do this the Supplier may, at its own discretion correct the data at its own expense or (subject to prior notification to the customer) at the customers expense.
Website Development
5.1.3) obtain and maintain all necessary licenses and consents and comply with all relevant legislation in relation to the Services and the use of In-put Material in all cases before the date on which the Services are to start
5.1.4) consent to and take such steps as are reasonably necessary to enable the Supplier to advertise the Customer’s website on its or any of its partner’s websites
5.1.5) add or produce the addition of unique content onto its website on a regular basis.
5.2) If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay. In particular, it is acknowledged that the services cannot be provided until the Supplier has received the FTP Details.
5.3) In the event that FTP access is not available the Supplier may agree to provide the Services subject to the following provisions:
5.3.1) The Customer will provide a copy of its website’s files and any databases that the website requires to run to the Supplier at its postal address at that time via a form of suitable media
5.3.2) The Supplier may provide either a report or static copies with the optimisation work annotated. This work shall be implemented by the Customer’s own design team / in house programmers. The Customer shall be responsible for any additional costs incurred in the implementation of the Supplier’s suggestions and recommendations
5.3.3) the Supplier does not warrant and accepts no liability for the implementation of its suggestions or recommendations.
5.4) The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing
5.5) The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of 6 months after the termination of the Contract, solicit or entice away from the Supplier or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.
5.6) In order to improve the provision of the Service, the Customer’s website URL may be linked via the Supplier’s URL. The Customer must notify the Supplier in writing if the Customer does not consent to this linking.
5.7) The Customer acknowledges that the provision of the Services is subject to any changes in search engine algorithms. In order to respond to any such changes the Supplier may re-optimise the Customer’s website.
5.8) The Customer shall not contact the Supplier’s network websites or partners.
5.9) The Customer shall inform the supplier of any changes to its website that may affect the Supplier’s ability to perform the Services, including, but not limited to, the deviation, alteration or addition of a URL address, URL redirect or the content of the website.
5.10) The Customer will not duplicate any activities or copy any content across to different domains, if this activity is performed, any guarantee given to the customer regarding results is void. The contract will resume as normal but without any guarantee.
- Telemarketing and E-mail Marketing-additional
6.1 The Customer must not use the data for any unlawful purpose or any purpose likely to bring the Supplier or its suppliers into disrepute.
6.2 The Customer agrees to abide by the Telephone Preference Service scheme, which enables businesses to comply with the Data Protection (direct marketing) Telecommunications regulation or any such regulations which may replace them.
6.3 Storage of the data by the Customer must comply with the Data Protection Act.
6.4 All marketing or telemarketing data supplied to the Customer is supplied on a single use basis unless otherwise agreed in writing.
6.5 The Customer must not disclose copy or distribute to any third party any portion of the data supplied by the company and will only use the data for their own internal purposes.
6.6 Each party will keep confidential all information or lists belonging to the other party and will not disclose it to any third party unless instructed to do so in writing by the other party.
- Website Development-additional
7.1 The contract period shall be for the whole term of fees paid by the Customer until the expiry of the valid domain name period usually two years from the date of registration. 14 days’ notice of cancellation must be received in writing, prior to the renewal date of a domain name or any other products.
7.2 The Supplier may elect to suspend or terminate the Service immediately on any default of payment by the Customer.
7.3 From time to time parts of the Supplier’s network may be taken off-line for repair or routine maintenance. The Supplier will endeavour to give as much notice as possible to the Customer but will not be held liable for any unscheduled downfall in the Network due to extraneous conditions including but not limited to Act of God, inclement weather, telephone failure or power failure.
7.4 The Customer acknowledges that they will only use the Service for lawful purposes. The Customer shall not use the Service to receive or transmit material which is in violation of any law or regulation, which is obscene, threatening, menacing, offensive, defamatory, in breach of confidence, or in breach of any intellectual property right. This extends to violations due to any spamming and or bulk email activity for which Vibe Graphics Ltd can and will follow up through legal process.
7.5 The Customer shall take reasonable precautions to prevent the reception and transmission of viruses to the Supplier and beyond and shall not attempt any intentional and malicious damage to the Supplier’s network or use the Service to affect other computers.
7.6 It is the Customer’s responsibility to keep all user names and passwords secure and not allow third parties knowledge of them or access to them or to store them on any computer in plain text or in a format that is easily accessible.
7.7 The Customer will notify the Supplier immediately by telephone or e-mail in any event of a username or password becoming known to a third party.
7.8 The Customer hereby indemnifies the Supplier against any action taken by a third party resulting from the Customer’s use of the Service.
7.9 The Customer shall notify the Supplier of any action taken against them by a third party in connection with their website and will indemnify the Supplier against any claims made or costs incurred in consequence of such claims or costs.
7.10 The Customer shall be responsible and liable for any costs to telephone companies for use of the Service from their point of connection.
7.11 The Customer acknowledges that the Supplier cannot exercise control over the content of information passed across the Internet and via the Service.
7.12 The Customer agrees to conform to the acceptable policies of connecting to other networks or computers across the Internet.
7.13 The Customer agrees not to re-assign, re-sell, sub-lease or transfer their account in any way, without the proper procedures being followed as required by the appropriate domain name registry. Contravention shall lead to immediate termination of the Service to the Customer by the Supplier
7.14 The Customer has the right to withdraw from or cancel their Service Agreement with the Supplier Ltd within the first 72hrs of any new agreement in writing by recorded post only. Any domain transfers should be made in writing via email only and no refunds will be made for domain registrations.
7.15 Domain transfer requests – provided all details are correct and procedures followed by the customer the Supplier will use the best endeavours to effect transfers within 24hrs of receiving the customer’s email subject to the Customer having settled all outstanding invoices/balances In the event of a customer wishing to transfer the IPS tag relating to their domain name to another Internet Service Provider (ISP), a small transfer charge equal to the current annual hosting charge will become payable.
7.16 The Supplier will register a domain to an inpidual and/or company on a per domain basis and the inpidual or company is granted exclusive use of this domain so long as all fees are paid, and the balance of any accounts are kept up to date.
7.17 By registering a name the Customer agrees to keep the Supplier and its associated companies and its Directors fully and effectively indemnified at all times against action brought about by any person, persons or company against by the Customer using the name. The Customer shall be liable for all damages and costs arising in respect of any such action and in such circumstances shall release the Supplier and its associated companies from its obligations under the Agreement between the parties.
7.18 Any registered domain can be used for any legal, decent and honest use on the Internet and must not breach any UK laws. The name cannot be used for any immoral or pornographic use. The registrant agrees to have read and accepted the terms and conditions of the appropriate domain registry before ordering a domain name for registration by the Supplier.
7.19 The Supplier shall not be liable for indirect, incidental or consequential damages, including loss of income, data, or information in any event by use of the Service.
7.20 The Supplier reserves the right not to register or assign any domain name for whatever reason.
7.21 The Supplier reserves the right to delete or suspend any domain name if payments have been defaulted upon and may at its discretion levy admin charges in re-establishing any domain or service thereof.
7.22 The Supplier reserves the right to vary the rate charged for domain name registrations and renewals and/or modify the services offered providing at least 28 days’ notice via its website of any cost or service changes.
- Charges and Payment
8.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the charges as set out in the Order Form, which shall set out a fixed price for the provision of the Services for the Initial Term. Where Services consist of Website Development the price shall be apportioned and paid on a monthly basis.
8.1.1 For Telemarketing and E-mail marketing credit terms may be offered (subject to satisfactory references). Invoices are raised on day 1 of campaigns. Payment terms are strictly 30 days from the date of invoice. Automatic account hold will be applied on the last day of the month to all accounts with overdue balances. In the event of credit terms being abused, credit facilities may be withdrawn at the discretion of the company without notice
8.2 Any fixed price contained in the Order Form excludes:
8.2.1 VAT, which the Supplier shall add to its invoices at the appropriate rate
8.2.2 any additional sums which are agreed between the parties for the variation to this Contract and the provisions of the services
8.2.3 any fees incurred in the provision of additional copies of web analytic reports prepared in the relation to the Services, which shall be charged at a fee of £100 plus VAT per copy and any increased fees arising from any variation of the terms of the Contract.
8.2.4 where certain projects are undertaken, a setup fee may be required in advance to cover any setting up costs which may be incurred prior to commencement of the project.
8.3 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
8.3.1 charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998
8.3.2 charge an administration charge of £ 25.00 + VAT for each late payment
8.3.3 following the failure by the Customer to make 2 consecutive payments, suspend all Services until payment has been made in full. The Customer hereby acknowledges that should the Supplier exercise its rights pursuant to this clause 8.3.3, the Supplier shall not be held liable for any negative impact.
8.3.4 In the event of any breach of the terms of this contract by either party which, if a breach is capable of rectification, is not rectified for a period of 30 days after written notification, then the injured party may (without prejudice to any other remedy or right of action it may have) forthwith terminate the contract by written notice to the guilty party.
8.4 Time for payment shall be of the essence of the Contract
8.5 All sums payable to the Supplier under the Contract shall become due immediately on its termination or in the circumstances referred to in clause 8.3.3, despite any other provision. This condition 8.5 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
8.6 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
- Carriage, delivery and Insurance-Telemarketing and E-mail Marketing
9.1 The customer is responsible for the delivery of the input to and for the collection of the output from the company’s premises. Transport arranged by the company on the customer’s behalf shall be at the customer’s risk. Proof of sending does not constitute proof of receipt.
9.2 Unless otherwise agreed, while in the possession of the company, all input and output materials shall be deemed to be held at the customer’s own risk. The customer should arrange insurance cover accordingly.
9.3 In the absence of a written agreement to the contrary, any delivery date quoted is an estimate only. All time scales quoted shall commence on completion of receipt of data and complete once output data commences transmission. The company shall not be liable for any loss resulting from delay in delivery however caused.
9.4 Without prejudice to these terms and conditions of trading, the company will accept no liability for failing to meet delivery dates quoted, where the input has not been delivered to the company in sufficient time or does not conform to the requirements of the contract or if the company is prevented from processing the input by circumstances beyond its reasonable control including but not restricted to restrictions on the supply of energy, national emergencies, strikes, lockouts, trade disputes, fires, machinery or equipment breakdowns or staff shortages.
9.5 Customer data can be made available in the following formats – hard copy, CD, floppy disk or email. All data received by the company will be subjected to virus checking prior to the start of any project. Whilst the latest auto-updated anti-virus technology is installed at the company’s premises, the company will not be held responsible for data infection by virus from any source whether originated at source or in transit upon return to the customer. Data loss or corruption is not the responsibility of the company.
9.6 The company has the facility to work live in real time on-line on the customer’s data. It is the responsibility of the company and the customer to ensure firewall and virus protection is in position.
9.7 WAV files can be made available upon request and are subject to strict regulation within the rules of the Data Protection Act 1998.
- Hosting
10.1 This clause applies where Hosting Services are included in the Services to be provided by the Supplier and not otherwise
10.2 Standard shared hosting is provided from a third-party company with no guarantee of the level of uptime from the Supplier.
10.3 It is the Customer’s responsibility to maintain its own backup processes and to regularly make copies of all information.
10.4 The Customer’s hosting account has predefined limits, set out within the invoice. It is liable for any excess charges (i.e. data transfer/disk space) incurred as a result of the account exceeding these service limits. For a full list of any over usage charges please e-mail info@vibegraphics.co.uk
10.5 The Supplier’s server service level agreement provides that the connection between the server as provided through the Supplier will be accessible on at least a 98% basis, 24 hours a day excluding any planned disconnection. Inaccessibility shall be measured from the documented time that the Supplier receives an e-mail or fax advising of the connection to the server being unavailable or if our internal systems that monitor the server are triggered. If inaccessibility of the server within a calendar month is lower than 98% the Supplier will provide credit against the Customer’s Hosting Management Charge for that month, corresponding to the following chart. Server Accessibility Deduction from Hosting Management Charge 98% to 100% 98% to 100% 95% to 98% 10% 90% to 95% 25% 80% to 90% 50% 80% or below 100% Credit against the Hosting Management Charge will only be given if a Customer makes a formal claim in writing to the Supplier within 10 working days of the incident being rectified
- Intellectual Property Rights
11.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Supplier. Subject to condition 11.2 and payment of the Price, the Supplier licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables, the Content and the Services. This shall automatically terminate upon termination of the Contract, unless upon such termination the Price has been paid in full.
11.2 The Customer acknowledges that, where the Supplier does not own any Pre-existing Materials, the Customer’s use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written license (or sub-license) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
11.3 As between the Customer and the Supplier the Customer’s Pre-existing Materials shall be owned by the Customer. The Customer licenses all such rights to the Supplier free of charge on a non-exclusive worldwide basis to such an extent as is necessary to enable the Supplier to provide the Services.
11.4 The Customer undertakes that they have all necessary rights and/or consents necessary to permit the transfer of the intellectual property and data provided to the Supplier hereunder (including for the avoidance of doubt the In-put Material and the Customer’s Pre-existing Material), the Supplier’s subsequent use of such data and intellectual property in connection with the provision of the Services as envisaged hereunder and shall indemnify the Supplier on demand against any action, award, claim, cost, expense, fine, liability, loss or penalty incurred or suffered by the Supplier as a result of the Customer not having such rights and/or consents.
- Confidentiality and the Supplier’s Property
12.1 The Customer 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 Customer by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain.
12.2 The Customer may disclose such information:
12.2.1 to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract
12.2.2 as may be required by law, court order or any governmental or regulatory authority.
12.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 9
12.4 The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
12.5 Save as set out in condition 11.4, all materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer (including Pre-existing Materials) shall, at all times, be and remain as between the Supplier and the Customer the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.
12.6 The Supplier reserves the right to do normal system housekeeping such as creating back-ups but does not accept responsibility for ensuring successful backups or data security
12.7 If the Supplier suspects illegal activity, it may notify the authorities and reserves the right to do anything on their systems which they have reasonably advised us to do in the protection of their systems
12.8 In the event of a disputed domain each respective Registry (i.e. Nominet, InterNic etc…) will notify the legal registrant of disputed domain(s) of the circumstances and liaise with all parties in dispute as determined by their respective terms and conditions of service provision. The Supplier cannot enter into any direct involvement with the resolution of any dispute other than inform and relay to its customer any information supplied by the appropriate Registry as the Supplier has no control over any domain assigned by any Registry
- Limitation of Liability – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
13.1 This condition 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
13.1.1 any breach of the Contract
13.1.2 any use made by the Customer of the Services, the Deliverables or any part of them
13.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract 13.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
13.3 If alterations are made by the Customer or a third party to the Customer’s site, search engine placements may be affected, and the Supplier accepts no responsibility for any variations in the search engine placements following any alteration to the Customer’s website. In these circumstances, the Supplier reserves the right to charge a further fee for any costs incurred by the Supplier in providing the Services.
13.4 The Supplier is not responsible for the content or advertisements on any of the Supplier’s network of sites or partner sites. If the Customer is unhappy with a website that contains the Customer’s advertisement, please notify the Supplier in writing and request the advertisement be removed.
13.5 The Customer shall have an opportunity to review the appearance and content of the website in accordance with the Project Plan and unless the Customer responds to the contrary within 14 days shall be deemed to have approved this. The Supplier shall have no liability for any errors in respect of content or design which have been passed to the Customer for approval.
13.6 Advice and recommendations provided by the Supplier are provided on the basis of prevailing best practice as at the time the advice is given. The Supplier shall have no liability to the Customer to the extent search engine providers alter their practices (including algorithms) which may affect the advice provided and the methodology adopted by the Supplier in its delivery of the Services.
13.7 Nothing in these Conditions limits or excludes the liability of the Supplier:
13.7.1 for death or personal injury resulting from negligence
13.7.2 for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier
13.7.3 for any liability incurred by the Customer as a result of any breach by the Supplier of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
13.8 Subject to condition 13.2 and condition 13.7 the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the price paid for the Services.
- Data Protection
14.1 The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Supplier.
14.2 The Supplier may use the personal data of the Customer from time to time to contact them with information about additional goods or services which may be of interest to the Customer. If the Customer does not want the Supplier to contact them for this purpose they should notify the Supplier in writing to the address set out in condition 1.1 or such other address as the Supplier notifies the Customer of from time to time.
- Termination
15.1 Without prejudice to any other rights or remedies which the Supplier may have, the Supplier may terminate the Contract without liability to the Customer immediately on giving notice to the Customer if:
15.1.1 the Customer fails to make 2 consecutive payments due under the Contract on the due date for payment
15.1.2 the Customer commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach
15.1.3 the Customer repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract 15.1.4 the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply
15.1.5 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors
15.1.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the Customer
15.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer
15.1.8 a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver
15.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the Customer
15.1.10 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days
15.1.11 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 15.1.4 to condition 15.1.10 (inclusive)
15.1.12 the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business
15.1.13 there is a change of control of the Customer (as defined in section 574 of the Capital Allowances Act 2001)
15.2) If the Customer is found to be using techniques which, in its absolute discretion, the Supplier determines unethical (including but not limited to as cloaking, hidden text, keyword stuffing) and if the unethical techniques are not removed within 7 days following notification by the Supplier, the Supplier may terminate the Contract with immediate effect by giving written notice. The Company shall accept no responsibility for the effect of the client using unethical techniques 15.3 On termination of the Contract for any reason:
15.3.1) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt
15.3.2) the Customer shall return all of the Supplier’s Equipment, Pre-existing Materials and Deliverables. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping
15.3.3) the Supplier shall cease to provide the Services and all links to the Customers website shall be disabled
15.3.4) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected
15.3.5) the Customer shall within 14 days, remove all references to the Supplier from its website and from within the source code
15.4) In certain circumstances the Supplier may in its absolute discretion provide to Customer, free of charge, a blog installation subject to the Customer acquiring a minimum number of articles or contracting with the Supplier for the provision of Content for a minimum term (as set out in the Order Form). Where the Contract is terminated early for whatever reason and such termination shall cause the Customer to breach its minimum purchase requirements, the Customer shall pay an additional fee for the provision the blog installation equal to £ 1,500 (plus VAT where the installation uses PHP) or £ 2,000 (plus VAT, where the installation used ASP).
15.5) On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect:
15.5.1) condition 11 (Intellectual Property Rights)
15.5.2) condition 12 (Confidentiality and Supplier’s Property)
15.5.3) condition 13 (Limitation of Liability)
15.5.4) condition 15 (Termination)
15.5.5) condition 25 (Governing Law and Jurisdiction)
16.) Force Majeure
16.1) The Supplier shall have no liability to the Customer 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 the Supplier 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 subcontractors.
17.) Variation
17.1) The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
17.2) Subject to condition 14.1, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
- Waiver
18.1) A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
18.2) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
19.) Severance
19.1) If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
19.2) If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
- Entire Agreement
20.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter
20.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
20.3 Nothing in this condition shall limit or exclude any liability for fraud.
- Assignment
21.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract. 21.2 The Supplier may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent
21.3) Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
22.) No Partnership or Agency
22.1 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
23.) Rights of Third Parties
23.1) A person who is not a party to the Contract shall not have any rights under or in connection with it.
24.) Notices
24.1) Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party.
24.2) Any notice shall be deemed to have been duly received if delivered personally, when left at the address set out in the Order Form or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed. 24.3 This condition 24 shall not apply to the service of any in any proceedings or other documents in any legal action. 24.4 A notice required to be given under the Contract shall not be validly served if sent by e-mail.
25.) Governing Law and Jurisdiction
25.1) The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
25.2) The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).