Web Design and Development, Domain Name registration and Hosting and related Services
- After commencement of this Agreement we will, if required, agree with you a "Project Plan" setting out certain activities and timescales. We will then design a web site for you in accordance with the details as agreed. It is important that you consider carefully your right to use material you wish to place on the web site. Accordingly, you are responsible for obtaining all consents, permissions and clearances in relation to the use of all materials you supply to us for use in the web site. You shall be responsible for complying with all relevant legislation and regulations in relation to the web design and content and the ongoing use of and access to the web site including but not limited to data protection regulations. You shall be responsible for ensuring none of the materials you supply is defamatory, indecent or in breach of copyright and you will thus indemnify us against all and any losses incurred by us in relation to the use of any such materials or arising out of our providing the Services to your specific requirements or instructions
- Where there is a "Project Plan" and it contains a timetable, whilst we will use our reasonable endeavours to meet the relevant dates time will not be of the essence in relation to this timetable and we shall be entitled to amend the timetable where failure to meet the due dates is due to your actions (or lack of them) or due to third parties or due to other circumstances beyond our reasonable control.
- The performance of our work in relation to the web site is subject to you providing all materials (this shall include text, graphics, photographs and any other content) and all other necessary data, information, input and decisions as are required of you. You agree to provide these promptly and accurately and will nominate a contact for us to deal with who will act on your behalf and will be authorised to make decisions on you behalf. To avoid any doubt, we will not be liable for any loss arising from material, data, information, input or instructions supplied by you or on your behalf which is incomplete, inaccurate, illegible, out of sequence or in the wrong form.
- Text supplied by you shall be typed up in a word processing application and supplied in a recognised and commonly used electronic format. Graphics shall be provided in a commonly used format to be mutually agreed. Photographs shall be provided on prints or such other commonly used format to be mutually agreed. Any other media or content shall be provided in a commonly used format as mutually agreed.
- On receipt of all materials and others required in terms of Clause 1(c) we shall prepare the site which shall be as detailed in the Proposal/Brief previously agreed.
- On completion of the draft site (or the draft section of the site where the contract between us provides for staged completion by sections) it shall be posted to a test site on the Web (on a server selected by Thomas Cole Ltd) for testing and approval and you shall have a period of seven days following our intimation of such posting to request any corrections or alterations required in terms of the contract to be implemented and which failing or following any reasonably required correction and alterations the site or section shall be deemed to be completed and accepted by you. You undertake to act reasonably and in good faith in requesting such corrections or alterations. We will take all reasonable care to ensure that site content is typographically correct. However the final responsibility for checking the content of the site lies with you. On completion of the site or section and subject to all other conditions being met it shall be posted live on the web server unless otherwise agreed between us or provided for in the contract between us.
- Upon payment of all outstanding sums in relation to our design of the web site, we will be deemed to have assigned to you copyright and related rights in relation to all material specifically created for you in relation to such web site. To avoid any doubt, this will include rights in any bespoke software specifically written for you for the web site but shall not include any third party materials nor any rights in general designs, layouts, structures, methodologies, techniques, coding, HTML, database structures or configurations or other materials which were in existence prior to commencement of the site or were not created for exclusive use by you.
- Whilst we use our best endeavours to ensure the site can be viewed across a spectrum of available World Wide Web platforms or viewers we currently design sites to a specification to be viewed by Microsoft Explorer Version 4 or 5 running within a Microsoft Windows platform on a Pentium powered Personal Computer and do not warrant the site will be fully functional within any other combination of viewer or operating system We carry out our design in accordance with a combination of criteria including W3C Standards, Browser manufacturers published data, Good/Common Practice and it is understood our design is liable to alteration to reflect changes in such standards and practice.
- Handover: On completion of the project you will accept handover of the site meaning that we have completed our contractual obligations and you accept responsibility for the management and maintenance of the website (unless a maintenance arrangement has previously been agreed. From the date of handover you will have a time period of up to 2 weeks (10 working days) to report any minor defects. Thomas Cole Ltd will underrate to correct these minor defects within a reasonable timescale. Prior to the site being launched 'live' payment in full is required.
In relation to all the services to be provided by us as detailed in the Proposal including the services detailed above (the "Services"), the following conditions shall apply:-
- All prices detailed in the Proposal are exclusive of value added taxes and any other relevant government imposed duties. You shall pay these in addition at the prevailing rate at the relevant time.
- Prices detailed in the Proposal remain valid for a period of 45 days only from the date of issue of the Proposal. However, we shall be entitled following your acceptance to vary our prices to reflect any change in third party dependent costs which are imposed on us, by giving written notice to you, such variations to take effect from the date such revised costs are imposed on us. In relation to any periodic costs detailed in the Proposal or Process Plan (such as hosting fees), we shall be entitled to vary these at any time by giving 30 days' notice to you.
- The payment terms are as detailed in Section 8 below (or in the Proposal and/or "Plan to Completion". However, where prices set out in the Proposal include items to be purchased by us on your behalf (such as domain name registration, hosting services) it is understood such sums shall be payable by you immediately on your acceptance of the Proposal. You will not be entitled to set off any claims against us or make any other deductions in relation to any payment due and all sums shall be payable within 7 days of the date of the invoice requesting payment.
- If payment is not made by the due date specified in Clause 2(c), we shall be entitled (without affecting any other rights we may have) to charge interest on the outstanding amount (notwithstanding any court decree obtained) at the rate of 5% above the base rate from time to time charged by Bank of Scotland Plc from the due date until the payment in full.
- Where training/coaching is to be provided, payment in full for such training shall be made by you at least 7 working days prior to the commencement of such training/coaching failing which we shall be entitled to withhold such training/coaching until payment is made.
- At all times you must specify a communication address and a recognised format by which we may send messages in relation to the provision of the services (particularly in an emergency). Should you fail to do so then, to avoid any doubt, we shall not be responsible for any loss arising as a result.
- If at any time we require access to your premises to provide the Services, you will provide this at all reasonable times and be responsible for the health and safety of our personnel whilst on your premises.
- Where the Proposal confirms that any of the Services will run for periods of one year at a time then, subject to termination by us or by you by giving 30 days notice to the other to expire at the end of such period of one year, then to avoid doubt such services shall be deemed to be renewed for a further period of one year or such other period as shall be mutually agreed between us. If at termination of the services as specified in the contract between us or any renewal period you wish to transfer your web site to any third party host, we will provide reasonable co-operation to you in doing so but reserve the right to make a reasonable charges for the work or expenses (if any) reasonably incurred in such transfer.
Both we and you undertake to maintain the confidentiality of all information provide by one to the other (including in your case information relating to your customers). In particular:
- We undertake to use your confidential information solely for the purposes of providing the services to you and
- You will not disclose any technical information obtained from us to any other persons without our prior written consent except in each case insofar as such information enters the public domain (other than through unauthorised disclosure under this Agreement).
- You will indemnify us against all and any losses incurred by us whether arising directly or indirectly from any act, omission, lack of compliance, breach or failure on your part in relation to any materials supplied by you in terms of Clause 1(a) or otherwise arising out of our providing the Services to your specific requirements or instructions
- Whilst we undertake to provide the Services with reasonable skill and care no other warranty express or implied is given and all implied warranties of any nature on our part are expressly excluded.
- We also expressly exclude liability of any kind in relation to the following:
- the transmission or acceptance of information of any nature on your behalf and your acts and omissions in relation to the use or misuse of the Services;
- the acts or omissions of other providers of hardware, software or telecommunications services for faults in or failures of their equipment programmes processes or apparatus;
- liability for consequential loss of any nature howsoever arising including but not limited to loss of profit and opportunity;
- any delay, malfunction, non performance or other degradation of any of the Services caused by or resulting from any alteration and/or modifications and/or amendments made by you or due to changes of specifications requested or implemented by you
- In any event, our liability for the Services shall be limited to the total price paid for the services in aggregate in relation to all claims under this Agreement. To avoid any doubt, as required by law, nothing in these Conditions attempts to restrict or exclude our liability for death or personal injury arising directly out of our negligence.
- Either party will be entitled to terminate the contract between us by written notice effective immediately if the other is in material breach of contract. To avoid any doubt, a breach arising under this contract shall be deemed to be a material breach if not remedied within 14 days of written notice requiring the breach be remedied issued by the party not in breach to the other.
- You will be deemed to be in material breach and we will be entitled but not bound to terminate the contract between us if at any time you fail to pay any sums due within 14 days of the due date (as specified in Clause 2(c)) or if you are subject to insolvency proceedings of any nature.
- Termination will be without prejudice to any accrued rights or liabilities of either party or any other rights or obligations, which due to their nature are intended to survive termination. Where termination occurs and work has been carried out by us and not paid for because the due date has not been reached, we reserve the right to charge you for such work and you shall pay such charges within 14 days of the date of invoice.
- If appropriate, we reserve the right at our sole discretion to elect to suspend any or all of the services in the circumstances set out in conditions 5(a) and 5(b) but this will not affect our right to terminate at any time after such suspension.
- Within 7 days of the termination of the contract between us for any reason you will return or destroy (at our option) all copies of our software and any and all materials provided by us to you in connection with the provision of the Services and shall purge/expunge all magnetic media forms of such materials and (on request) give us a certificate certifying that you have complied with these terms. This does not affect your rights under condition 1(g) if applicable
Where we register domain names on your behalf (whether directly or by using any service provider), this is subject to the following conditions:-
- Whilst Thomas Cole Ltd may offer some guidance on the availability of domain names at a given point in time the confirmation of all domain names is entirely your responsibility and we accept no liability for infringement of third party rights through your selection and use of such names. You warrant that you are entitled to use all names selected by you and will indemnify us in this report.
- You will comply with all the relevant terms and conditions of the relevant domain name registration companies and registries including UKReg (for whom we are a reseller). A copy of such terms and conditions will be available at www.ukreg.com/terms.html Please note that we cannot guarantee that any name requested will be available or approved for use.
- We reserve the right to suspend the availability of any of the names used by you (and any relevant services or e-mail accounts) if in our reasonable opinion there are grounds to believe that your choice of domain name is likely to be in breach of conditions of 3(a) above.
Where we provide hosting services to you in relation to your web site (whether directly or by using any service provider including Fasthosts Ltd for whom we are a reseller, you agree that whilst we will take reasonable steps to ensure that the web site is available at all reasonable times, availability of your site may be subject to down time for maintenance, upgrading, network faults and/or other faults beyond our reasonable control such that permanent access cannot be guaranteed. By accepting these conditions, you also recognise and agree that access by third parties to your web site will at all times be subject to the availability of other networks whether forming part of the internet or otherwise. If you choose not to renew your hosting services we will keep a copy of your site for 30 days after which we will destroy all materials, software and data related to the site.
- Web Site Design and Development
Unless otherwise defined in the proposal our standard terms of payment for web site design and development will apply as follows. Percentages are of total contract value for the web development (ex VAT) excluding Domain name registration and hosting and related services
Payments shall be staged as follows:
- 50% Upon commencement of project/acceptance of proposal
- 50% Prior to 'launch' of site
Payment would be due strictly within 7 days of receipt of the invoice. Prior to the site being launched 'live' final payment in full is required
- Domain Name Registration
All domain names registered shall be paid in full in advance. Thomas Cole Ltd will not undertake to register any domain name until appropriate payment has been made in full as detailed in Clause 2(c)
Payment for hosting and related services (eg provision of graphical statistics, virus protection) shall be made in full prior to the services being activated as detailed in Clause 2(c)
- Pay Per Click Banner Advertising
Unless otherwise defined in the proposal our standard terms of payment for Pay Per Click Banner Advertising will apply as follows:
Before commencement of Banner ad Campaign an invoice will be sent for payment as follows:
- 100% Banner Ad Set Up
- 100% Banner Ad Maintenance
- 100% Banner Ad Budget
At the same invoice date an additional invoice will be sent for the above services for the following month to be paid on 30 days credit.
- Search Engine Optimisation
Unless otherwise defined in the proposal our standard terms of payment for web site design and development will apply as follows:
Before commencement of Search Engine Optimisation Campaign an invoice will be sent for payment as follows:
- 100% 1 Months payment in advance
At the same invoice date an additional invoice will be sent for the following months search engine optimisation to be paid on 30 days credit.
- E-Mail Marketing
Unless otherwise defined in the proposal our standard terms of payment for web site design and development will apply as follows:
Before commencement of E-Mail Marketing Tool an invoice will be sent for payment as follows:
- 100% E-Newsletter Set Up
- 100% 1 Months E-Mail Send
At the same invoice date an additional invoice will be sent for the monthly E-Mail send for the following month to be paid on 30 days credit.