DESIGN AND BUILD TERMS
2. ACCEPTANCE OF WORK
Quotations are valid for 15 working days from date of issue. When the Client places an order to purchase a website or website updates from Developer, the order represents an offer to Developer to purchase the website or website updates which is accepted by Developer only when an invoice is sent to the Client. No contract for the supply of services exists between Client and Developer until Developer sends an invoice to the Client for payment. The invoice equals acceptance by Developer (or third party supplier) of Clients offer to purchase services from Developer and this acceptance of work is a valid contract between Client and Developer regardless of whether Client receives the invoice. Any other services on the order which have not been included in the invoice do not form part of the contract. The Client agrees to check the details of the invoice are correct and should print and keep a copy for their records. Developer reserves the right to withdraw from contract at any time prior to acceptance.
3. PERMISSION AND COPYRIGHT
Developer reserves the right to refuse to handle:
a) Any media which is unlawful or inappropriate;
b) Any media which contains a virus or hostile program;
c) Any media which constitutes harassment, racism, violence, obscenity, harmful intent or spamming
d) Any media which constitutes a criminal offence, infringes privacy or copyright
e) Any other questionable media at Developers own discretion
5. DOMAIN NAMES AND HOSTING
Client agrees to take all legal responsibility for use of third party domain name, hosting and email services and hereby agrees to indemnify and hold harmless the Developer from any claim resulting from the Client’s publication of material and use of the domain name, hosting and email services. Any support or payment due relating to the domain name, hosting and email services are to be made between the Client and the third party service. Client agrees to pass on FTP details and any other access details relating to their domain name and hosting account which the Developer requires to upload the website if required as part of a project. Developer reserves the right without notice to refuse work with domain names or hosting and email services without reason for such rejection or refusal.
The Customer agrees to provide the Company with all the necessary information they require to progress the project in a reasonable timescale. Delays of more than 15 working days by the Customer to provide the necessary information will constitute a breach of contract. The Company reserves the right in such circumstances to terminate the contract and recover the total cost of the project.
All alterations for websites projects are to be requested in writing either by email or postal mail by the Client. After the specified allowed hours of alterations have been completed, Developer reserves the right to advise the Client as such and send a separate quotation to the Client and to request payment for any further alterations. Developer reserves the right to request payment be received for further alterations before continuing work. Upon completion of an agreed design the Client is asked to confirm in writing by email or postal mail that the design is signed off as complete and agree that any further design alterations are chargeable. Client agrees to provide any needed information and content required by Developer in good time to enable Developer to complete a design or website work as part of an agreed project. Client agrees that a HTML page built from a graphic design may not exactly match the original design because of the difference between the display in design software and the rendering of HTML code by internet browser software. Developer agrees to try and match the design as closely as is possible when building the code. Developer endeavours to create pages that are search engine friendly, however, Developer gives no guarantee that the site will become listed with search engines or of certain search results. In no event shall Developer be held liable for any changes in search engine rankings as a result of using Developers code. If an error or issue with the design or code arises during the project which does not allow the design or code to match the original specification, then Client agrees that Developer can apply a nearest available alternative solution. After site completion, a Client or a third party of their choosing may wish to edit their website code themselves to make updates. However, the Client agrees that in so doing they assume full responsibility for any issues which occur as a result of changing the code themselves. If Client or a third party of their choosing edits the website code and this results in functionality errors or the page displaying incorrectly, then Developer reserves the right to quote for work to repair the website. Developer reserves the right to assign subcontractors in whole or as part of a project if needed. Client agrees that it is their responsibility to have regular backups of their website and software made by themselves or third party services in case of a software or hardware failure.
All communications between Developer and Client shall be by telephone, email or postal mail, except where agreed at Developer’s discretion.
7. WEB BROWSERS
Developer shall make every effort to ensure sites are designed to be viewed by the majority of visitors. Sites are designed to work with the main browsers Internet Explorer and Mozilla Firefox latest releases. Client agrees that Developer cannot guarantee correct functionality with all browser software across different operating systems. Clients agree that after handover of files any updated software versions of the main browsers Internet Explorer and Mozilla Firefox, domain name setup changes or hosting setup changes thereafter may affect the functionality and display of their website. As such, Developer reserves the right to quote for any work involved in changing the website design or website code for it to work with updated browser software, domain name or hosting changes.
8. PAYMENT TERMS
All prices quoted are exclusive of VAT. All Customers will be required to pay a 30% non-refundable deposit of the project cost before any work can begin and all subsequent balances are due towards the end of the project and before handover of any finished files. All invoices must be paid in full within 7 days of the invoice date, except for the final invoice which will need to be settled immediately prior to handover of code and upload of site. The Developer will carry out work only where an invoice has been paid by the Client for the work, unless otherwise agreed at Developers discretion. Additional work requested by the Client which is not specified in the agreed quotation is subject to a separate quotation and Developer reserves the right whether to quote or accept additional work. If additional work is accepted by Developer may affect timescale and overall delivery time of the project. Once an invoice is sent to the Client it must either be paid by bank transfer, cheque made payable to Freestone Creative and sent with proof of posting to the Developer’s main postal address.
Developer reserves the right to decline further work on a project if there are invoices outstanding with the Client. Client may request that the Developer cancel a project in writing by email or postal mail to Developer and the project is cancelled only if Developer confirms work has not been started on the project. If Developer has begun or completed the work and the Client no longer requires the files but have agreed to the work, they are still obliged to pay Developer for the work that has been carried out. All invoices are submitted by email except where required otherwise by regulations or agreed at Developer’s discretion. Developer reserves the right to remove its work for Client from the Internet if payments are not received.
9. LIABILITY & WARRANTY DISCLAIMER
Developer provides their website and the contents thereof on an “as is” basis and makes no warranties with regard to the site and its contents, or fitness of services offered for a particular purpose. Developer cannot guarantee the functionality or operations of their website or that it will be uninterrupted or error free, nor does it warrant that the contents are current, accurate or complete. Developer endeavours to provide a website within given delivery timescales to the best of its ability. However, the Client agrees that Developer is not liable for any claims, losses, costs incurred or compensation due to any failure to carry out services within a given delivery timescale. The Client agrees Developer is not liable for absence of service as a result of illness or holiday.
The Client agrees Developer is not liable for any failure to carry out services for reasons beyond its control including but not limited to acts of God, telecommunication problems, software failure, hardware failure, third party interference, Government, emergency on major scale or any social disturbance of extreme nature such as industrial strike, riot, terrorism and war or any act or omission of any third party services. Developer is not liable for any consequences or financial losses such as, but not limited to, loss of business, profit, revenue, contract, data or potential savings, relating to services provided. On handover of files from Developer to Client, the Client shall assume entire responsibility in ensuring that all files are functioning correctly before use. Whilst every effort is made to make sure files are error free, Developer cannot guarantee that the display or functionality of the web design or the website will be uninterrupted or error free. If after handover of files errors are found in code the Developer has created and the main browsers Internet Explorer and Mozilla Firefox, domain name setup and hosting setup are the same as when work began, then Developer can correct these errors for the Client at its own discretion. If after handover of files errors are found in code the Developer has created and the main browsers Internet Explorer and Mozilla Firefox have released an updated software version, or the domain name setup or hosting setup has been changed, Developer can correct errors for the Client free of charge and reserves the right to quote separately for any additional work needed as a result of changes to the browser software, domain name setup or hosting setup.
Should Client goes into compulsory or involuntary liquidation or cannot pay its debts in the normal course of business, Developer reserves the right to cancel forthwith any projects and invoice Client for any work completed. Developer shall have no liability to the Client or any third parties for any damages, including but not limited to, claims, losses, lost profits, lost savings, or other incidental, consequential, or special damages arising out of the operation of or inability to operate these web pages or website, even if Developer has been advised of the possibility of such damages. There are sometimes laws and taxes which affect Internet ecommerce. Client agrees that it is their responsibility to comply with such laws and will hold harmless, protect, and defend Developer and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Client’s exercise of Internet ecommerce.
Developer may from time to time recommend to the Client that updates are needed to their site to comply with, including but not limited to, new legislations, software releases and web standards. Developer reserves the right to quote for any updates as separate work. Client agrees Developer is not liable for any failure to inform or implement these updates to their site. Client agrees that it shall defend, indemnify, save and hold Developer harmless from any and all demands, liabilities, costs, losses and claims arising from omission to inform or implement these updates.
A 12 month security update contract is included within the total cost agreed by the client. The developer will provide security updates to the code within your site for a period of 12 months starting from the first day the site is made ‘live’. After 12 months has elapsed, the developer will be under no obligation to apply security updates to your website or the code contained within. It is the responsibility of the client to either renew the security update contract, or not renew the contract and agree that the developer has no liability should the website or code become compromised. If a security update contract is not in place and the website or code does become compromised, any work done by the developer to secure and restore the website or code will need to be agreed by the client and will be chargeable in accordance with our current rates. In cases of extreme security breaches it may be necessary to completely disable the website or code belonging to the client to protect the server. In these extreme circumstances if a security breach is discovered, or if the site or code become compromised and in the opinion of the developer poses a risk to the whole server and a security update contract is not in place, the client accepts that further charges will apply to make the site and code secure before restoration can take place.
Client agrees to use all Developer services and facilities at their own risk and agree to defend, indemnify, save and hold Developer harmless from any and all demands, liabilities, costs, losses and claims including but not limited to attorney’s fees against Developer or it’s associates that may arise directly or indirectly from any service provided or agreed to be provided or any product or service sold by the Client or its third parties. Client agrees this indemnification extends to all aspects of the project, including but not limited to website content and choice of domain name. Client also agrees to defend, indemnify and hold harmless Developer against any liabilities arising out of injury to person or property caused by any service provided or agreed to be provided or any product or service sold by the Client or third parties, including but not limited to, infringement of copyright, infringement of proprietary rights, misinformation, delivery of defective products or services which is harmful to any person, business, company or organisation.
Developer and any third party associates agrees that, except if directed by the Client, it will not at any time during or after the term of this agreement disclose any confidential information. Likewise, the Client agrees that it will not convey any confidential information about Developer to another party.
Developer and any third party associates shall use information provided by the Client in relation to this agreement in accordance with the Data Protection Act 1998 and also for the following purposes 1) to identify the Client in communications with them 2) to contact the Client from time to time to offer them services or products which may be of interest to or benefit the Client.
Developer reserves the right to terminate a project with a Client at any time without prior notification if it finds the Client in breach of these terms and conditions. Developer shall be the sole arbiter in deciding what constitutes a breach. No refunds are given in such a situation. This agreement shall be governed by the laws of England and Wales which shall claim venue and jurisdiction for any legal motion or claim arising from this agreement. This agreement is void where prohibited by law. Where one or more terms of this contract are held to be void or unenforceable for whatever reason, any other terms of the contract not so held will remain valid and enforceable at law. Any and all matters pursuant to this agreement are governed by English Law and are under exclusive jurisdiction of the English Courts. The developer reserves the right to alter these Terms and Conditions at any time without prior notice, the latest terms and conditions are held at the developer’s registered office and can be requested at any time. By accepting a quotation or making a payment of invoice to use the services supplied, the Client acknowledges to have read, understand, and accept the Terms & Conditions of this Agreement, and agrees to be legally binding by these Terms & Conditions.
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
- “Account” means the details of the Client that are required and held by the Host to facilitate the provision of the Service to the Client including, but not limited to, identification and location details, payment details, username and password, and details of the Service provided to the Client;
- “Business Day” means a day (that is not a Saturday or Sunday) on which banks are open for business in the UK;
- “Client Website” means the website that the Host is hosting for the Client and refers to all parts of that website including, but not limited to, component files and related services such as email;
- “Fee” means the sum payable by the Client to the Host in order to receive the Host’s Service;
- “Hosting Hardware” means all computer and networking equipment used by the Host in the provision of the Service including, but not limited to, servers and network infrastructure;
- “Hosting Package” means one of the Service packages described on the Host’s website and generally refers to the package selected by the Client;
- “Hosting Software” means all software used by the Host in the provision of the Service;
- “Order” means an order placed by the Client with the Host for the provision of the Service which shall contain details of the Client’s chosen Hosting Package; and
- “Service” means the collective components of the Host’s website hosting service which includes, but is not limited to, the provision of internet connectivity, bandwidth, website storage, software, email accounts and data back-ups, in combination with the Client’s chosen Hosting Package and can refer either to those components as a whole or to specific parts as the context may require.
1.2. The clause headings used in this Agreement are used for convenience only and are not intended to affect the meaning or interpretation of the terms of this Agreement.
2.1. Once the Client’s Order has been placed and processed the Host will use its best endeavours to commence provision of the Service as soon as reasonably possible. In any event the provision of the Service will commence no later than 15 Business Days after completion of the Order.
2.2. In the event that the provision of the Service is delayed by more than 15 Business Days from completion of the Order the Host will contact the Client, giving the Client the option of waiting for a further 15 Business Days or receiving a full refund of all Fees paid. In the event of further delay, the process in this sub-clause 2.2 shall be repeated.
2.3. The Host is under no obligation to provide any Service that is not set out in the Client’s Order and the relevant Hosting Package unless the Host and Client enter into a new written Agreement for the provision of additional services.
2.4. The Host may, in its sole discretion, alter, improve or otherwise modify the Service provided that any such change will not significantly alter the provision of the Service to the Client or result in the removal of any features or services that form part of the Hosting Package. The Client will be notified no later than 15 Business Days in advance of any planned changes and will receive full documentation of any action required on their part. No alterations to the Service shall affect the Fees payable by the Client.
2.5. Notwithstanding the provisions of sub-clause 2.4 the Host may take any action necessary to address or repair faults in Hosting Hardware or Host Software without any prior notice to the Client. If such faults or remedial action results in an interruption to the provision of the Service the Client will be notified in accordance with the provisions of clause 3 of this Agreement.
3. AVAILABILITY OF SERVICE
3.1. The Host will use its best and reasonable endeavours to ensure that the Service is provided to the Client on a constant, uninterrupted basis throughout the Term of this Agreement.
3.2. Notwithstanding sub-clause the Host shall not be liable for Hosting Hardware downtime or interruptions to the provision of the Service where such downtime or interruptions last for no more than 72 Hours.
3.3. Where the Service is unavailable for more than 72 Hours the Host will contact the Client and provide reasons for the interruption or, where this is not possible due to an undiagnosed problem, state that the problem is undiagnosed but is being investigated.
3.4. Where Service interruption due to Hosting Hardware failure cannot be remedied within 3 Business Days the Host shall:
3.4.1. Transfer the Client Website to alternative Hosting Hardware in order to restore the provision of the Service; or where this is not possible, advise the Client on suitable courses of action available to them.
3.4.2. Notwithstanding sub-clause 8.1.1, from the end of the initial 72 Hour period of Service interruption, keep a record of the number of whole days of Service interruption. Upon restoration of the Service, any partial days shall be rounded up and the Host will reimburse the Client for the interrupted period. The reimbursement will be calculated on a pro-rata basis and shall be paid to the Client within 14 Business Days.
3.4.3. Where the provision of the Service is interrupted through the fault of any third party, the Host shall bear no responsibility or liability.
4. FEES AND PAYMENT
4.1. Fees for the Hosting Packages offered by the Host are available on request.
4.2. The Client is required to pay all fees due in advance of a 12 Month period of Service provision, unless an alternative agreement is reached by the Host and The Client.
4.3. For the first 12 Month of Service provision, payment of fees due shall form part of the Order process. For all subsequent 12 Month periods of Service provision the Client will be sent an invoice and renewal notice 60 days before the 12 Month period is due to expire. Payment must be made within that 60 day period (cleared funds) in order for provision of the Service to continue without interruption.
4.4. The Host may at any time change the price of its Hosting Packages. The Client will not be subject to any additional charges or refunds during a 12 Month period of Service provision. Any change in fees will be reflected in subsequent renewals of Service provision. The Host reserves the right to continue charging old fees for renewals where the new fee is higher.
4.5. The Client may, at any time, change their Hosting Package. If the Client chooses to do so, the Host will refund the original fee paid by the Client relative to the number of whole months out of the 12 Month period of Service provision that remain. The client will be invoiced for a new 12 Month period of Service provision in accordance with the fees for their new chosen Hosting Package.
4.6. All fees payable by the Client to the Host shall be paid in full, without set off or deduction. The Host reserves the right to suspend the Service or cancel the Client’s Order if fees are not paid on or before the due date.
4.7. The Host will send domain renewal notices by email to the email address given as the domain owner / registrant with full instructions for payment of renewal fees. Renewal notices will be sent approximately 60, 30, 14 and 7 days prior to renewal. You are advised to renew your domain names as early as possible. Failure to renew your domain name in sufficient time will result in the release of your domain name. The Host can accept no responsibility for the non-receipt of renewal notices nor for any losses incurred as a result of the release or non-renewal of your domain names.
5. CHANGES TO THIS AGREEMENT
5.1. The Host reserves the right to change the terms of this Agreement and all other terms and conditions and policies which may affect Clients in order to comply with changes in the law.
5.2. The Client will be informed of any such changes and shall be deemed to be bound by them 1 calendar month after receiving the notice.
5.3. If the Client does not agree to be bound by the changes they may terminate this Agreement in accordance with Clause 12.
6. CLIENT UNDERTAKINGS AND OBLIGATIONS
6.1. The Client may not use the Service or any other Hosting Hardware and Hosting Software for any unlawful or otherwise inappropriate purposes. This includes, but is not limited to:
6.1.1. Distribution of viruses, spyware, malware, or any other form of code designed to cause harm or nuisance to hardware or software or to obtain data without consent;
6.1.2. Distribution of pirated material including, but not limited to software, movies, music and written works; and
6.1.3. Distribution of obscene or illegal material including that which is pornographic, abusive, threatening, malicious, harassing, fraudulent, defamatory or that which encourages criminal activities.
6.2. The Client may not use their website to link to any other sites or systems hosting any material described in sub-clause 6.1.
6.3. The Client will monitor and supervise any and all third party activity on their website (including communications systems such as forums). Any third party activity that may fall within the provisions of sub-clause 6.1 must be stopped or removed, as appropriate.
6.4. The Client must ensure that any and all activity conducted through the Client’s Website in relation to the collection of personal information complies with the provisions of the Data Protection Act 1998. 6.5. The Client must ensure that any and all activity conducted through the Client’s Website in relation to selling complies with the provisions of the Distance Selling Regulations 2000.
6.5. The Client is responsible and accountable for all activity relating to their website and the Service that is carried out by third parties on their behalf.
6.6. The Client will use its best and reasonable endeavours to supply all information required to facilitate the provision of the Service to the Host in a timely fashion.
7. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
7.1. The Client will not acquire ownership rights over any of the Host’s Intellectual Property in or in relation to the Service or in relation to any other property owned by the Host.
7.2. The Host will not acquire ownership rights over any of the Client’s Intellectual Property in the Client’s Website or any other material belonging to the Client.
7.3. The Client agrees to fully indemnify the Host against all costs, expenses, liabilities, losses, damages, claims and judgments that the Host may incur or be subject to as a result of the infringement of any Intellectual Property infringement owned by third parties arising from: 7.3.1. The Client’s failure to obtain the necessary rights and permissions from third parties in order to enable the Host to legally provide the Service; The provision of the Service by the Host based upon information and material provided by the Client.
8.1. Subject to Clause 3 and sub-clauses 8.2 and 8.3 the Host shall not be liable to the Client or to third parties for:
8.1.1. Any losses resulting from interruptions or downtime to the Service;
8.1.2. Any inability, on the part of the Client, to use the Service;
8.1.3. Any damage or loss resulting from the loss of confidentiality caused by the storage of information on the internet. 8.2. Nothing in this Clause shall exclude the liability of the Host for death or personal injury resulting from the Host’s negligence or that of its employees or agents.
8.1.4. Nothing in this Clause or in this Agreement shall exclude the liability of the Host for fraudulent misrepresentation.
9. WARRANTY DISCLAIMER
Subject to the provisions of this Agreement, the Host gives no warranty, express or implied, in connection with the Service as to fitness for purpose, quality, non-infringement or merchantability.
10.1. The Client will fully indemnify the Host against all costs, expenses, liabilities, losses, damages and judgments that the Host may incur or be subject to as a result of any of the following:
10.1.1 The Client’s misuse of the Service;
10.1.2 The Client’s breach of this Agreement; 10.1.3. The Client’s negligence or other act of default;
10.1.4. The Activities of third parties conducted on the Client’s website using facilities such as blogs, forums and chat.
11. FORCE MAJEURE
11.1. Neither the Host nor the Client shall be liable for breaching this Agreement where that breach results from Force Majeure.
11.2. Force Majeure refers to any event that is beyond the reasonable control of the parties and includes, but is not limited to, acts of God; acts of war; national emergencies; governmental action; union action; civil unrest; fire; explosion; flood and theft.
12. TERM AND TERMINATION
12.1. The initial period of Service provision will commence on the date that the Client’s Order is processed. This term shall last for a period of 12 months, subject to the termination provisions below and to the refund provisions of sub-clause 2.2 of this Agreement.
12.2. Subsequent periods of Service Provision shall last for a period of 12 months each and will follow on from a previous period, without interruption, subject to the fulfilment of the Client’s payment obligations under Clause 4 of this Agreement. All subsequent periods are subject to the termination provisions below.
12.3. The Host reserves the right to terminate this Agreement or to suspend the Service in the following circumstances:
12.3.1. If the Client fails to pay fees due under Clause 4 of this Agreement;
12.3.2. If the Client is in breach of the terms of this Agreement;
12.3.3. If the Client becomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986;
12.3.4. If the Client is unable to pay its debts within the definition of Section 123 of the Insolvency Act 1986; or
12.3.5. If the Client has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.
12.4. The Client may request the termination of the Service and this Agreement by written notice, 1 calendar in advance. The following shall apply to such situations:
12.4.1. The issuing of refunds is at the sole discretion of the Host;
12.4.2. If the Client wishes to terminate during the course of a 12 month period of Service provision the Service will end 1 calendar month after the Host receives the Client’s notice. Refunds will not be issued.
12.5. On termination of the Service and this Agreement the Client’s Website and all related material will be removed from the Hosting Hardware.
12.6. If the Client sends a termination notice in error or changes their mind, the Host must be informed within 1 calendar month of the notice that the Client wishes their Account to be restored. Any notification outside of this period will require a new Account to be set up with the Client being required to pay for a full 12 month period. The Client will be required to pay a re-activation fee of £70.
13.1. The Host reserves the right to assign or otherwise transfer any rights or obligations under this Agreement.
13.2. The Client may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the host.
In the event that any provision of this Agreement is found to be invalid or otherwise unenforceable for any reason, the remaining provisions shall continue in full force without being impaired or invalidated in any way. The waiver by either party of any provision of this Agreement will not operate or be interpreted as a waiver of any other provision or a subsequent breach of any provision.
15. LAW & JURISDICTION
This Agreement is governed by the laws of England and Wales. Any dispute relating to this Agreement shall fall within that jurisdiction.