Terms and Conditions for the Supply
The definitions and rules of interpretation in this condition apply in these terms and conditions.
Acceptance: the acceptance or deemed acceptance of the Website by the Customer pursuant to condition 7.
Acceptance Date: has the meaning set out in condition 7.3.
Acceptance Tests: means the tests to be performed by the Supplier in order to test compliance of the Website with the Website Proposal.
Commencement Date: has the meaning set out in condition 16.1.
Conditions: these terms and conditions as amended from time to time.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions, as defined in condition 2.3.
Customer: the person, firm or company who purchases Services from the Supplier.
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any other directly applicable European Union regulation relating to privacy.
Data Subject: has the meaning set out in Article 4(1) of the GDPR.
Defects: has the meaning set out in condition 7.6.
Domain Name: means any domain name purchased by the Supplier on behalf of the Customer.
Extended Term: has the meaning set out in condition 16.2.
Inappropriate Content: has the meaning set out in condition 8.1
Initial Term: has the meaning set out in condition 16.1.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation 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.
Materials: the content provided by the Customer to the Supplier from time to time for incorporation in the Website.
Non-Supplier Defect: has the meaning set out in condition 7.5.
Personal Data: has the meaning set out in Article 4(1) of the GDPR.
Project: the website design and development project as described in the Website Proposal.
Scope of Work: means the scope of the Services to be provided by the Supplier to the Customer as set out in (i) the Sign-Up Form; or (ii) the Website Proposal: or (iii) as otherwise agreed in writing (which shall include email) between the parties.
Services: means the Website Design and Development Services, Website Hosting Services, Website Support and Maintenance Services, digital marketing, consultancy and training services, as applicable, to be provided by the Supplier under the Contract as set out in the Scope of Work.
Sign-Up Form: means the Supplier’s sign-up form setting out details of the Project and any other Services to be provided by the Supplier to the Customer and confirming the charges payable, the estimated completion date of the Project (if any) and any other specific contractual terms applicable to the Contract.
Supplier: WA Solutions Ltd (company number: 06965157) and having its registered office at 42 Goat Street, St Davids, Haverfordwest, Pembrokeshire, SA62 6RQ and trading as WebAdept UK.
Supplier Defect: has the meaning set out in clause 7.4.
Third-Party Services: means the website hosting and Domain Name services provided by the Third-Party Suppliers.
Third-Party Supplier: means a third-party providing website hosting and Domain Name services.
Third-Party Supplier Conditions: means the Third-Party Supplier’s terms and conditions of business, set out in Schedule 1, as applicable from time to time in the provision of Website Hosting Services.
UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation.
Website: the website to be designed and developed by the Supplier on behalf of the Customer.
Website Design and Development Services: means the website design and development services to be provided by the Supplier to the Customer as part of the Services, if applicable.
Website Hosting Services: the website hosting and purchase of Domain Name services to be provided by the Supplier as part of the Services, if applicable.
Website Proposal: the written proposal sent by the Supplier to the Customer containing the description or specification of the Website design or other Services to be provided by the Supplier and confirming the charges payable, the estimated completion date of the Project (if any) and any other specific contractual terms applicable to the Contract together with any other responsibilities of the parties in connection with the provision of the Services.
Website Support and Maintenance Services: means the website support and maintenance services to be provided by the Supplier to the Customer as part of the Services, if applicable, and as set out in Schedule 2.
Website Support and Maintenance Service Levels: means the service level responses and response times referred to in Schedule 2.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.5 A reference to writing or written includes email.
2. Application of Conditions
2.1 These Conditions shall:
(a) apply to and be incorporated in the Contract; and(b) prevail over any inconsistent terms or conditions contained in, or referred to in, the Sign-Up Form, Website Proposal or other Scope of Work, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.
2.3 The Sign-Up Form constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. Accordingly, the completion and return of the Sign-Up Form by the Customer, or the Supplier’s commencement or execution of work pursuant to approval of the Sign-Up Form or other Scope of Work, shall establish a Contract for the supply and purchase of those Services on these Conditions. The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the Sign-Up Form shall not govern the Contract.
3. Scope of the Services
3.1 The nature and scope of the Services shall be as set out in the Scope of Work.
3.2 Where the Services include the provision of Website Design and Development Services, the additional terms in conditions 7 and 8, as may be amended from time to time, shall apply. Details of the Website Design and Development Services shall be set out in the Scope of Work.
3.3 Where the Services include the provision of Website Hosting Services, the additional terms in conditions 7, 8 and 9, as may be amended from time to time, shall apply.
3.4 Where the Services include the provision of Website Support and Maintenance Services, the additional terms in condition 10 shall apply. Details of the Website Support and Maintenance Services shall be set out in the Scope of Work.
4. Supplier’s obligations
4.1 The Supplier shall use reasonable endeavours to supply the Services in accordance in all material respects as set out in the Scope of Work.
4.2 The Supplier shall use reasonable endeavours to meet the performance dates specified in the Scope of Work, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
5. Customer’s obligations
5.1 The Customer acknowledges that the Supplier’s ability to provide the Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any information and data the Customer provides to the Supplier, including spelling and grammar of all text provided to the Supplier. Accordingly the Customer shall:
(a) co-operate with the Supplier in all matters relating to the Project; (b) inform the Supplier without delay of any change of the Customer’s contact details and place the Supplier’s email address on its whitelist, accepted mail recipient or similar list, and adjust any spam filters accordingly; and(c) provide the Supplier, in a timely manner, with access to and use of all information, data and documentation reasonably required, by the Supplier for the performance by the Supplier of its obligations under the Contract and ensure that such information is accurate in all material respects.
5.2 Where the Services include Website Design and Development Services, the Customer additionally shall:
(a) be responsible for the accuracy and completeness of the Materials on the Website; and(b) be responsible for obtaining and holding all consents, licences, permits and other similar instruments applicable to material it supplies to the Supplier for incorporation in the Website.
5.3 Where the Services include staff training, the Customer is responsible for ensuring attendance by the relevant staff members and no reduction in the charges agreed with the Supplier will be made if any staff members fail to attend the training for any reason.
5.4 In the event of cancellation of any training or consultancy services by the Customer, the following charges shall apply:
(a) notice of cancellation received by the Supplier at least 7 days prior to the proposed date of commencement of the applicable Services – 50% of original contract price shall be payable by the Customer;(b) notice of cancellation received by the Supplier less than 7 days prior to the proposed date of commencement of the applicable Services – 100% of original contract price shall be payable by the Customer.
5.5 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees, the Customer shall in all circumstances be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
5.6 The Customer shall not, without prior written consent of the Supplier, at any time from the date of the Contract to the expiry of six months after the completion of the Services, solicit or entire away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or subcontractor of the Supplier. The Customer shall not be in breach of this condition 5.6 if it hires an employee or subcontractor of the Supplier as a result of a recruitment campaign not specifically targeted to any employees or subcontractors of the Supplier. Any consent given by the Supplier in accordance with this condition shall be subject to the Customer paying to the Supplier on demand a sum equivalent to 20% of the then current annual remuneration of the Supplier’s employee or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to such employee or subcontractor.
6. Change requests
6.1 If the Customer requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;(b) any variations to the Supplier’s charges arising from the change;(c) the likely effect of the change on the Scope of Work; and(d) any other impact of the change on the terms of the Contract.
6.2 If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Scope of Work and any other relevant terms of the Contract to take account of the change.
7. Development and acceptance of the Website
7.1 Once the Supplier has completed the design and development of the Website in accordance with the Website Proposal or as otherwise set out in the Scope of Work, the Supplier shall invite the Customer to attend Acceptance Tests. The procedure set out in this clause 7 shall be repeated in respect of each further phase of the Project as set out in the Website Proposal as well as any further development works agreed by the parties from time to time.
7.2 The Acceptance Tests shall test compliance of the Website with the specification as set out in the Website Proposal or as otherwise agreed in the Scope of Work. The form and detail of such tests shall be notified to the Customer by the Supplier. All testing shall be carried out using Google Chrome.
7.3 Acceptance of the Website shall occur when the Supplier has confirmed that the Website has passed the Acceptance Tests (Acceptance Date).
7.4 In the event that any Acceptance Tests are not passed, the failures that cause the relevant tests to be failed (Supplier Defect) shall be drawn up and documented by the Supplier and presented to the Customer for discussion as to how best to rectify such Supplier Defects.
7.5 If any failure to pass the Acceptance Tests exclusively results from (i) a defect which is caused by an act or omission of the Customer, or by one of the Customer’s sub-contractors or agents for whom the Supplier has no responsibility; or (ii) by an issue with an external platform or browser (Non-Supplier Defect), the Website shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect. The Supplier shall provide all assistance reasonably requested by the Customer in remedying any Non-Supplier Defect by supplying additional services or products. If such assistance is requested, the Customer shall pay the Supplier in full for all such additional services and products at the Supplier’s then current fees and prices.
7.6 The Customer shall have a period of 30 days from the Acceptance Date (Review Period) within which to raise any issues or report any defects in the Website (Defects) to the Supplier. If the Supplier considers that any of the Defects identified by the Customer during the Review Period result in the Website failing to meet the specification set out in the Website Proposal or in the Scope of Work then the Supplier shall rectify such Defects as soon as reasonably practicable at no additional charge to the Customer. For the avoidance of doubt, any Defects which:
(a) are not reported to the Supplier within the Review Period; or(b) are, in the reasonable opinion of the Supplier, not covered by the scope of the Services to be provided by the Supplier; or(c) in the reasonable opinion of the Supplier, Non-Supplier Defects
then the Supplier shall have no responsibility to the Customer in respect of such Defects.
7.7 The Supplier shall remedy any Supplier Defects before launch in order to ensure that the Website passes the Acceptance Tests on a retest.
7.8 Acceptance of the Website shall be deemed to have taken place upon the occurrence of any of the following events:
(a) the Customer uses any part of the Website for any revenue-earning purposes or to provide any services to this parties other than for test purposes; or(b) the Customer unreasonably delays the start of the relevant Acceptance Tests or any retests for the period of seven working days from the date on which the Supplier is ready to commence running such Acceptance Tests or retests.
8. Website Content
8.1 The Customer shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
8.2 The Supplier shall include only Materials on the Site. The Customer acknowledges that the Supplier has no control over any content placed on the Site by Visitors and does not purport to monitor the content of the Site. The Supplier reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. The Supplier shall notify the Customer promptly if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.
8.3 The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.
8.4 The Supplier may include the statement “Designed by WebAdept” on the home page of the Site in a form to be agreed.
9. Third-Party Services
9.1 The Customer acknowledges that the Supplier shall use Third-Party Services in the provision and performance of the Services, and that such Third-Party Services are to be supplied in accordance with the Third-Party Supplier’s Conditions. Acceptance of these Conditions shall constitute acceptance of the Third Party Supplier’s Conditions, as amended from time to time.
10. Website Support and Maintenance Service
10.1 The Supplier shall perform the Website Support and Maintenance Services in accordance with the Service Levels set out in Schedule 2.
10.2 As part of the Website Support and Maintenance Services, the Supplier shall:
(a) commit appropriate resources to the provision of the Services;(b) use reasonable efforts to correct faults notified by the Customer; and(c) provide technical support for the Website in accordance with the Website Support and Maintenance Service Levels.
10.3 The Customer shall provide the Supplier with:
(a) prompt notice of any Faults which it becomes aware of; and(b) such output and other data, documents, information, assistance and (subject to compliance with all Customer’s security and encryption requirements notified to the Supplier in writing) remote access to the Customer’s system, as are reasonably necessary to assist the Supplier to reproduce operating conditions similar to those present when the Customer detected the relevant fault and to provide the relevant Service.
10.4 All Website Support and Maintenance Services shall be provided on an off-site basis (such as over the telephone or by e-mail) from the Supplier’s office.
10.5 Where the Customer has not purchased Website Support and Maintenance Services and the Customer’s Website is maliciously attacked, defaced, or similar detriment, the Customer can request the Supplier to restore the Website to full working order and secure it on the Customer’s behalf for a charge, to be agreed by the parties. Should the Customer refuse to allow the Supplier to restore the Website, the Supplier shall suspend the site until such time as the Customer has paid the charge and the Supplier has been instructed to restore the Website.
11. Charges and payment
11.1 The total charges payable by the Customer to the Supplier for the Services together with the applicable payment terms shall be as set out in the Scope of Work.
11.2 The Supplier shall issue an invoice in respect of the charges and, subject to any special terms otherwise agreed in writing by the parties, the Customer shall make payment of each invoice issued by the Supplier in full and cleared funds within 14 days of the date of issue.
11.3 Where the Services include Website Design and Development Services and Website Hosting Services, all outstanding charges for the Services must be paid in full by the Customer prior to the Website going live.
11.4 Where a deposit has been paid for the Services, this shall be non-refundable in the event of cancellation by the Customer.
11.5 Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier on the due date the Supplier may:
(a) charge interest on such sum from the due date for payment at the annual rate of 8% 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 judgement; and(b) suspend all Services and withhold access to any code(s) and/or website(s) developed by the Supplier for the Customer as part of the Services until payment has been made in full.
11.6 Time for payment shall be of the essence of the Contract.
11.7 All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
11.8 All amounts due under this agreement shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). 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.
12. Use of the Supplier’s website
12.2 The Supplier may update and change its website from time to time.
12.3 The Supplier does not guarantee that its website, or any content on it, will be continuously available or be uninterrupted. The Supplier may suspend or withdraw or restrict the availability of all or any part of its website for business and operational reasons.
12.4 The Customer must not disclose any user identification code, password or any other piece of information supplied to it as part of the Supplier security procedures to any third party.
12.5 The Supplier shall be entitled to disable any user identification code or password at any time, if in its reasonable opinion the Customer has failed to comply with any of the provisions of this condition 12.
12.6 The Customer must notify the Supplier if it knows or suspects any unauthorised use of the Customer’s user identification code or password
12.7 The content on the Supplier’s site is provided for general information only. It is not intended to amount to advice on which the Customer should rely.
12.8 The Supplier makes no representations, warranties or guarantees, whether express or implied, that the content on its website is accurate, complete or up to date.
12.9 Where the Supplier’s site contains links to other sites and resources provided by third parties, these links are provided for the Customer’s information only. Such links should not be interpreted as approval by the Supplier of those linked websites or information the Customer may obtain from them. The Supplier has no control over the contents of those sites or resources.
12.10 The Supplier’s website may include information and materials uploaded by other users of the website, including to bulletin boards and chat rooms. The Supplier has not verified or approved this information, and the views expressed by other users on the Supplier’s website do not represent the Supplier’s views or values.
12.11 The Customer may not use the Supplier’s website:
(a) in any way that breaches any applicable local, national or international law or regulation;(b) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;(c) for the purpose of harming or attempting to harm minors in any way;(d) to bully, insult, intimidate or humiliate any person;(e) to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam);(f) to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
12.12 The Customer shall not be permitted to access without authority, interfere with, damage or disrupt:
(a) any part of the Supplier’s site;(b) any equipment or network on which the Supplier’s site is stored; (c) any software used in the provision of the Supplier’s website; or (d) any equipment or network or software owned or used by any third party.
12.13 Where the Supplier provides any interactive service on its website:
(a) the Supplier shall provide to the Customer clear information about the service offered, if it is moderated and what form of moderation is used (including whether it is human or technical); and(b) the Supplier will use reasonable endeavours to assess any possible risks for users (and in particular, for children) of interactive services on its website. The Supplier shall be under no obligation to oversee, monitor or moderate any interactive service provide on its website, and any liability for any loss or damage arising from the use of any interactive service by a user in contravention of these Conditions is expressly excluded, whether the service is moderated or not.
12.14 Where the Customer contributes material to the Supplier’s website (Contribution), the following content standards shall apply. The Contribution must:
(a) be accurate (where it states facts);(b) be genuinely held (where it states opinions);(c) comply with the law applicable in England and Wales and in any country from which it is posted;(d) not be defamatory of any person;(e) not be obscene, offensive, hateful or inflammatory;(f) not bully, insult, intimidate or humiliate;(g) not promote sexually explicit material;(h) not include child sexual abuse material;(i) not promote violence(j) not promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;(k) not infringe any copyright, database right or trade mark of any other person;(l) not be likely to deceive any person;(m) not breach any legal duty owed to a third party, such as a contractual duty or a duty of confidence;(n) not promote any illegal activity;(o) not be in contempt of court;(p) not be threatening, abuse or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety;(q) not be likely to harass, upset, embarrass, alarm or annoy any other person.(r) impersonate any person, or misrepresent your identity or affiliation with any person;(s) not give the impression that the Contribution emanates from the Supplier, if this is not the case;(t) not advocate, promote, incite any party to commit, or assist any unlawful or criminal act such as (by way of example only) copyright infringement or computer misuse;(u) not contain a statement which the Customer knows or believes, or has reasonable grounds for believing, that members of the public to whom the statement is, or is to be, published are likely to understand as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism; and(v) not contain any advertising or promote any services or web links to other sites.
12.15 The Supplier does not guarantee that its website will be secure or free from bugs or viruses. The Customer shall remain responsible for configuring its information technology, computer programmes and system to access the Supplier’s website. The Customer should use its own virus protection software.
12.16 The Customer must not misuse the Supplier’s website by knowingly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. The Customer must not attempt to gain unauthorised access to the Supplier’s website, the server on which the Supplier’s website is stored or any server, computer or database connected to the Supplier’s website. The Customer must not attack the Supplier’s website via a denial-of-service attack or a distributed denial-of service attack. Breach of this provision shall be in contravention of the Computer Misuse Act 1990. The Supplier will report any such breach to the relevant law enforcement authorities and shall co-operate with those authorities by disclosing the Customer’s identity to them. In the event of such a breach, the Customer’s right to use the Supplier’s website will cease immediately.
12.17 The Customer may link to the Supplier’s website, provided that in so doing, it does not damage the Supplier’s reputation or take advantage of it. Such linking shall not be permitted on any website not owned by the Customer. The Supplier reserves the right to withdraw linking permission without notice.
13. Intellectual Property Rights
13.1 The Customer retains all Intellectual Property Rights in the Materials and grants to the Supplier a licence to such Intellectual Property Rights to the extent required by the Supplier to perform the Services.
13.2 Subject to payment in full of all applicable charges for the Services by the Customer, all Intellectual Property Rights in the Website (save for any Third-Party software or other tools used to create the Website) shall be the property of the Customer.
13.3 The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
14. Confidentiality and Supplier’s property
14.1 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 or its agents, and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the Customer’s obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
14.2 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;(b) was in the other party’s lawful possession before the disclosure;(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
14.3 Subject to clause 14.5, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
14.4 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
14.5 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
14.6 All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer shall at all times be and remain 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.
14.7 The above provision of this clause 10 shall survive termination of the Contract, however arising.
15. Limitation of liability
15.1 The following provisions set out the entire financial liability of the Supplier (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of the Contract howsoever arising;(b) any use made by the Customer of the Services or any part of them; and(c) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with the Contract.
15.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
15.3 Nothing in these Conditions excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence; or(b) for fraud or fraudulent misrepresentation.
15.4 Subject to clause 15.2 and clause 15.3:
(a) the Supplier shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:(i) loss of profits; or(ii) loss of business; or(iii) depletion of goodwill or similar losses; or(iv) loss of anticipated savings; or(v) loss of goods; or(vi) loss of contract; or(vii) loss of use; or(viii) loss or corruption of data or information; or(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Supplier’s total liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total price paid by the Customer to the Supplier for the Services.
15.5 The Supplier does not make any guarantees in relation to Google search positioning. The Supplier shall not be liable for any damage or loss incurred by any Customer as a result of a Website failing to achieve the Customer’s desired search positioning.
16. Term, auto-renewal and termination
16.1 The Contract shall commence on the date set out in the Scope of Work or as otherwise confirmed by the Supplier to the Customer (Commencement Date) and shall continue for the initial term set out in the Scope of Work (Initial Term), following which it shall automatically renew in accordance with the provisions of clause 16.2 below.
16.2 Unless terminated in accordance with clause 16.3 or clause 16.4, upon expiry of the Initial Term, the Contract shall automatically renew for the additional period set out in the Scope of Work (Extended Term). Upon expiry of the Extended Term and each subsequent anniversary thereof, the Contract shall continue to renew automatically for the term set out in the Scope of Work, unless terminated in accordance with clause 12.3 or clause 12.4.
16.3 Either party may give written notice to the other party not later than 30 days before the end of the Initial Term or the relevant Extended Term, to terminate the Contract at the end of the Initial Term or the relevant Extended Term, as the case may be.
16.4 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;(c) the other party 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;(d) the other party 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 other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;(f) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party;(g) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;(h) 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 other party;(i) a creditor or encumbrancer of the other party 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 the other party’s assets and such attachment or process is not discharged within 14 days;(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.4(c) to clause 12.4 (i) (inclusive);(k) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
16.5 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
16.6 Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
17. Data protection
17.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 17 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this clause 17, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
17.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
17.3 Without prejudice to the generality of clause 17.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this agreement.
17.4 Without prejudice to the generality of clause 17.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:
(a) process that Personal Data only on the written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that Personal Data. Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) not transfer any Personal Data outside the European Economic Area unless the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;(ii) the Data Subject has enforceable rights and effective legal remedies;(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(d) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(f) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(g) maintain complete and accurate records and information to demonstrate its compliance with this clause 17.
17.5 The Customer does not consent to the Supplier appointing any third party processor of Personal Data under this agreement. OR The Customer consents to the Supplier appointing [THIRD-PARTY PROCESSOR] as a third-party processor of Personal Data under this agreement. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 17. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 17.
17.6 Either party may, at any time on not less than 30 days’ notice, revise this clause 17 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
18. Force majeure
The Supplier shall not in any circumstances have any 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, epidemic or pandemic, strikes, lock-outs or other labour, trade or industrial disputes (whether involving the workforce of the Supplier or any other party), interruption or failure of a utility service or transport network, act of God, terrorist attack, war, riot, civil commotion, threat or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations, malicious damage, collapse of buildings, fire, explosion or accident, nuclear, chemical or biological contamination or sonic boom, compliance with any law or governmental or public authority order, rule, regulation or direction including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent, , accident, breakdown of plant or machinery, fire, flood, storm, drought, earthquake or other natural disaster, or default of suppliers or sub-contractors.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20. Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
21.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
21.2 If any provision or part-provision of this agreement is deemed deleted under clause 16.1, the parties shall negotiate in good faith to amend such provision that, , to the greatest extent possible, achieves the intended commercial result of the original provision.
22. Entire agreement
22.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
22.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
23.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
23.2 The Supplier may at any time assign, transfer, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
24. No partnership or agency
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
25. Third party rights
This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
26.1 Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or(b) sent by email
Customer: – to the address specified in the Sign-Up Form or as otherwise confirmed by the Customer to the Supplier from time to timeSupplier: – firstname.lastname@example.org
26.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service;(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 21.2, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
26.3 This condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this condition, “writing” shall include email.
27. Governing law
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
THIRD-PARTY SUPPLIER’S CONDITIONS
The following conditions are brought to the attention of the Customer:
1.1 The Third-Party Suppliers do not guarantee that:
(a) the Third-Party Services will be uninterrupted, secure or error-free;
(b) any data generated, stored, transmitted or used via or in connection will be complete, accurate, secure, up to date, received or delivered correctly or at all; or
(c) particular results will be achieved or that any results will be accurate or reliable.
1.2 The Third-Party Suppliers may suspend the services for repair, maintenance or improvement.
1.3 The Third-Party Suppliers may access, copy, preserve, disclose, remove, suspend or delete any data.
2. Website Hosting Services
2.1 The Customer must not embark on any course of action, whether by use of the Website or any other means, which may cause a disproportionate level of website activity without providing at least seven day’s prior notice in writing.
2.2 In relation to Services that include security patching, the Customer acknowledges that it may be necessary to implement such patches before it has received notice which may affect the functionality of the Website.
3. Acceptable use
3.1 The Services may be used for lawful purposes only.
3.2 Transmission, storage, or presentation of any information, data or material in violation of any United Kingdom law is prohibited. This includes, but is not limited to:
(a) copyrighted material to which the Customer has no distribution rights; (b) material judged to be threatening or obscene;(c) unlicensed software or files; or(d) material protected by trade secret and other statute.
3.3 Legal content is permitted unless stated otherwise.
3.4. Examples of unacceptable content include:
(a) pirated software; (b) “Illegal MP3s”; (c) cracking (“hacking”) programs or archives; (d) “Warez” sites; (e) child pornography; or(f) linking directly to the above.
4. Suspension and de-activation
4.1 If any of these terms are violated, the Third-Party Suppliers reserve the right to remove or suspend any account without prior notice.
WEBSITE SUPPORT AND MAINTENANCE SERVICES
1.1 The Supplier will provide access to support as follows:
a. Help desk email support: available 24 hours a day, 7 days a week including public holidays.b. Phone support: generally Monday to Friday, excluding public holidays from 9:00 AM to 5:00 PM.c. After hours emergency: available to Platinum service level subscribers.
1.2 The Supplier shall use reasonable endeavours to respond to all support requests within one hour. Response times may vary depending on the complexity of enquiry and current support request volumes.
2. Standard service levels
2.1 Standard service level is the base service level for the Services and includes:
a. Phone support: during standard hours of trade (weekdays 9AM to 5PM).b. Routine backups: the last daily, weekly and monthly backups are retained on the server.c. Website consultancy: the Customer shall be entitled to discuss its website goals and receive professional advice. Max 15 mins per month.d. Troubleshooting: the Supplier can spend a reasonable amount of time to diagnose any website problem.e. Website protection: should the Customer’s Website be maliciously attacked, defaced, or similar detriment, the Supplier will restore the Website to full working order and secure it on the Customer’s behalf, at all times prioritising Customer’s that have purchased Website Support and Maintenance Services with enhanced service levels (as below).
3. Enhanced service levels
3.1 The Supplier shall offer enhanced service levels such as Silver, Gold and Platinum Website Support Packages for an additional cost, as specified by the Customer in the relevant Scope of Work.
3.2 Features of enhanced service levels may include:
a. After hours emergency: the Supplier will provide a means to contact it directly outside of hours and escalate issues and requests directly to management.
b. Website protection: should the Customer’s Website be maliciously attacked, defaced, or similar detriment, the Supplier will restore the Website to full working order and secure it on the Customer’s behalf.
c. Website administration: provision of hands-on technical support and management of Customer’s web hosting and email.
d. Advanced support (see below).
e. Backups: daily/weekly/monthly backups are retained on the Supplier’s server for the Customer’s Website.
f. Remote backups: the Supplier will backup the Customer’s Website to a remote/off site server for added safety.
g. Backup restores: the amount of backup restores allowed each month.
4. Advanced support
4.1 Advanced support includes:
a. Website maintenance: the Supplier shall act as the Customer’s web team to advise on and maintain the Website.
c. Solutions analysis: the Supplier shall review, research and recommend systems and solutions to enhance the Website and provide the Customer with suggestions for competitive advantages.
d. Remote desktop support: the Supplier will log into the Customer’s system remotely to assist with any Website related matter, or to provide onscreen support and training.
e. Discounted advanced support: if the Customer runs out of allocated minutes for advanced support during a month, the Supplier will reward higher service levels with reduced rates.
4.2 Advanced support usage is calculated on a per minute basis, and charged at a minimum of 30 minutes.
4.3 Where a quoted amount of time for an advanced support request is provided by the Supplier, the quoted amount of time will be deducted from the Customer’s advanced support quota and not the actual amount of time upon completion.
5. Website Availability
5.1 The Supplier shall endeavor to achieve 99% Website Availability to the Customer, where Website Availability shall mean the percentage of a particular month (based on 24-hour days for the number of days in the subject month) that the content of the Website is available for access by visitors via Hypertext Transfer Protocol (HTTP), as measured by the Supplier.
5.3 The Customer shall not receive any credit under in connection with any failure or deficiency of Website Availability caused by or associated with:
a. circumstances beyond the Supplier’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, earthquake, hurricane or other acts of God, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, failure of third party software (including, without limitation, ecommerce software, payment gateways, chat, statistics or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services;
b. failure of access circuits to the Supplier’s network, unless such failure is caused solely by the Supplier;
c. scheduled maintenance and emergency maintenance and upgrades to server or Website;
d. DNS issues outside the direct control of the Supplier;
e. issues with FTP, POP, IMAP, or SMTP customer access;
f. false Service Level breaches reported as a result of outages or errors of any Supplier measurement system;
g. the Customer’s acts or omissions (or acts or omissions of others engaged or authorised by Customer), including, without limitation, custom scripting or coding (e.g., CGI, Perl, HTML, ASP, etc), any negligence, willful misconduct, or use of the Services in breach of the Contract;
h. e-mail or webmail delivery and transmission;
i. DNS (Domain Name Server) Propagation; and
j. outages elsewhere on the Internet that hinder access to the Customer’s account.
5.5 The Supplier shall not be responsible for browser or DNS caching that may make the Website appear inaccessible when visitors can still access it. The Supplier will guarantee only those areas considered under the control of the Supplier: the Supplier’s server links to the Internet, and the Supplier’s servers.
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