Terms & conditions
Terms and Conditions for the Supply of Web Marketing Services by Source Design Ltd
- Definitions and Interpretation
- Terms and Conditions
- The Contract
- Company Obligations and Warranties
- Client’s Obligations and Indemnities
- Approvals & Sign Offs
- Ad-hoc Items
- Delays and Complaints
- Other Limitations of Liability
- Intellectual Property Rights
- Third Party Software or Plugins
- Domain Names
- Hosting Services
- Confidentiality and Personal Data
- Data Protection
- Term, Termination and Assignment
- Force Majeure
- Entire Agreement
- Law and Jurisdiction
1. Definitions and Interpretation
1.1 In these terms and conditions, the following definitions apply unless otherwise stated:
‘Business Day’ means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
‘Contract’ means the contract between the Company and the Client for the supply of Services governed by these Terms and the Order.
‘Client’ means the individual or business entity who purchases Services from the Company and whose details are set out in the Order.
‘Force Majeure Event’ means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, pandemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
‘Group Company’ means a company which is a subsidiary or holding company of the Company, as defined in section 1159 of the Companies Act 2006.
‘Company’ means Source Design Limited, a company incorporated in England and Wales under company number 06437875 whose registered office is at 2 Nettles Lane, Shrewsbury, Shropshire. SY3 8RJ, trading as Source.
‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
‘Order’ means the order placed by the Client through counter-signing the Company’s Quotation form or by the sending and receiving written acknowledgement, acceptance or instruction delivered by electronic or other means.
‘Order Form’ means a Quotation form (including ‘Visual sign-off’, where applicable) counter-signed by the Client, or by written acknowledgement, acceptance or instruction delivered by electronic or other means, which together with these terms and conditions shall form a binding contract.
‘Quotation’ means the written quotation prepared by the Company which contains its cost proposals for providing Services to the Clients.
‘Services’ means the services the Company will provide to the Client as specified in the Order.
‘Specification’ means the description or specification of the Services in the Order.
‘Terms’ means these terms and conditions as updated from time to time by the Company.
‘VAT’ means value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Where these Terms use words in their singular form, they shall also be read to include the plural form of the word and vice versa. Where these Conditions use words, which denote a particular gender or other ‘identity’, they shall also be read to include all genders, or other ‘identity’, and vice versa.
1.3 The headings in this document are inserted for convenience only and shall not affect the construction or interpretation of these Terms.
1.4 A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
2. Terms and Conditions
2.1 These Terms shall apply to all agreements concluded between the Company and the Client to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 These Terms and the Order may only be varied by express written agreement between the Company and the Client.
3. The Contract
3.1 The Order constitutes an offer by the Client to purchase the Services in accordance with these Terms. The Client shall ensure that the terms of the Order and any relevant Specification are complete and accurate.
3.2 The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, or when the Company has started to provide the Services having received the Order, whichever happens first, at which point the Contract shall come into existence.
3.3 The Contract constitutes the entire agreement between the Company to provide the Services to the Client and for the Client to purchase those Services, in accordance with these Terms.
3.4 The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company, which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Company and any descriptions or illustrations contained in the Company’s collateral or website are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or any other contract between the Company and the Client for the supply of Services.
3.5 A Quotation for the supply of Services given by the Company shall not constitute an offer. A Quotation shall only be valid for a period of ninety (90) Business Days from its date of issue.
4. Company Obligations and Warranties
4.1 The Company warrants that it will provide the Services as stipulated in the Order using reasonable care and skill to conform in all material respects with the Specification.
4.2 The Company shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only, and time shall not be of the essence for the provision of the Services. The Company shall not be liable for any delay in delivery of the Services caused by a Force Majeure event or the Client’s failure to provide the Company with adequate delivery instructions or any other instructions relevant to the supply of the Services.
4.3 The Company shall have the right to make any changes to the Services, which are necessary to comply with any applicable law.
4.4 The Company shall be entitled to use a Group Company or other subcontractors for the provision of the Services provided always that the Company shall remain liable to the Client for the performance of the Services as if it had carried them out itself.
5. Client’s Obligations and Indemnities
5.1 The Client shall provide assistance and technical information to the Company, as reasonably required by the Company, in sufficient time to facilitate the execution of an Order in accordance with any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to the Company and warrants and undertakes to the Company that the Client’s employees assisting in the execution of an Order have the necessary skills and authority.
5.2 The Client shall be obliged as quickly as possible and within the agreed deadline to comment on and or approve materials provided under the Services, including (without limitation) advertising copy, search terms and graphic material submitted by the Company. In addition, the Client shall be obliged as quickly as possible and within the agreed deadline to implement changes on websites, in IT systems or where it may otherwise be required by the Company.
5.3 The Client shall be obliged to inform the Company immediately of changes of domain names, websites, technical setup and any other material information regarding the technical infrastructure which may affect the Services delivered by the Company.
5.4 In the event that the Client fails to undertake those acts or provide those materials required under this clause 5 within any agreed deadline (and at least within fifteen (15) Business Days of the date requested by the Company), the Company shall be entitled to invoice for the Services that it has supplied and the remaining Services specified in the Order whether or not the Company has been able to deliver them.
5.5 The Client shall indemnify and keep the Company indemnified fully against all liabilities, costs and expenses whatsoever and howsoever incurred by the Company in respect of any third parties as a result of the provision of the Services in accordance with the Order, Specification, or the content of the Client’s advertising or web pages which result in claims or proceedings against the Company for infringement of any Intellectual Property Rights or other proprietary rights of third parties, or for breach of confidentiality or contract or for defamation.
5.6 The Client undertakes to comply with all applicable rules, regulations, codes of practice, and laws relating to its use of the Services, including without limitation its obligations under the General Data Protection Regulation 2016/679 (GDPR), the Data Protection Act 1998, the Regulation of Investigatory Powers Act 2000, Competition Act 1998 and the E-Commerce Directive and equivalent legislation and hereby agrees to indemnify and to keep the Company indemnified in respect of any and all costs, claims or proceedings whatsoever brought against the Company by any third party in connection with any breach of the same by the Client.
5.7 As standard across the Services and unless otherwise notified, the Client shall be exclusively responsible for implementing the optimisation changes recommended by the Company. As notified by the Company, in certain cases for amendments to existing optimisations, the Client shall allow the Company use of the site’s FTP or content management system’s username and password in order to gain access to add in keywords.
5.8 The Company requires that prior notice be given for any alterations relating to the Client’s website(s) that may affect the services supplied by the Company. If alterations are made by the Client or a third party to the Client’s site(s), search engine placements may be affected, and the Company cannot be held responsible.
5.9 The Company advises that regular, fresh content added to the site will help to improve the stability of rankings within search engines, and the Client understands that regular, unique content (Including News and Blogs) plays an important part in the success of a website and failure to add unique content will lessen the impact of SEO services.
6. Approvals & Sign Offs
6.1 All visuals and design work are required to be ‘signed-off’ by the Client prior to; either, any web programming, or print being sent to print, i.e. Brochures, stationery, advertisements, posters and the like.
6.2 Whilst every effort is made to ensure that we build websites to match the approved visuals as closely as possible, the client accepts that technical constraints may impact the final result. The client acknowledges that this is beyond the Company’s control and accepts that we cannot guarantee a 100% match.
6.3 The Client accepts full responsibility for the accuracy and approval of all visual proofs supplied by the Company and that they are obliged to inform the Company of any discrepancies, inaccuracies, spelling or grammatical errors, in writing prior to signing-off. Once signed off, any errors not picked up by the Client are not the responsibility of the Company.
6.4 The Client accepts that the Company will accept no financial liability for any amendments required post-sign-off, including the cost of any reprinting required as a result. The Client also accepts that any amendments or work to rectify artwork post-sign-off may incur additional charges by the Company on a quotation or Ad hoc basis at the discretion of the Company.
7.1 Unless otherwise expressly stated, all prices shall be in Pounds Sterling and shall be exclusive of VAT and other duties. In the event that duties are introduced or changed after the conclusion of an Order, the Company shall be entitled to adjust the agreed prices accordingly.
7.2 The Client acknowledges that certain Services may involve the licensing of third party Intellectual Property Rights and that the Client may be required to enter into a licence directly with such third-party. Unless otherwise expressly stated, all prices shall be exclusive of costs for the acquisition of Intellectual Property Rights for materials to be included in marketing materials, including if relevant (but without limitation) pictures and licences from third party owners and licensors.
7.3 The price stated in the Order shall be an estimate based on a qualified assessment of the number of hours required to provide the Services. This is an estimate only, and Services shall be invoiced in accordance with the actual number of hours spent rather than the price set out in the Order or Quotation. In the event that the price is not so stipulated, the Client shall be charged at the hourly rate specified in the Company’s then-current price list. The Company shall be obliged to update the estimate and budgets on an ongoing basis following, among other things, changes made to an Order.
7.4 Whilst every effort is made to ensure that costing estimates are accurate, the Company reserves the right to amend any estimate, should an error or omission have been made.
8. Ad-hoc Items
8.1 The Quotation may include services or items whose costs will be determined on a time basis rather than a fixed price – termed as ‘Ad-hoc’ and represented by an hourly rate/s. The Client acknowledges that ‘Ad-hoc’ charges may be applied to items such as; additional web page templates, increases in project management and meetings, amendments, changes to, or additional requirements, functionality etc., or any other items that are outside the scope of the Quotation. The Client also acknowledges that such charges will be imposed without prior notice from the Company and that the Company may accept a verbal instruction to undertake any such work.
8.2 The Client remains responsible for advising the Company of any financial ‘Cap’ it may wish to impose on ‘Ad-hoc’ charges, in writing, and prior to their instruction to undertake any work to which these charges may apply. The Company acknowledges its responsibility to maintain accurate records of any work that may incur ‘Ad-hoc’ charges and identify these on invoices.
9.1 The Company shall invoice the Client monthly (or, as scheduled on the client’s proposal/Quotation document, which, if different to the standard terms, will take precedence), either in advance or following Services delivered. In addition, before the Company carries out any work, Clients are usually asked to provide a non-refundable fees deposit. This deposit is like a rent deposit. It is kept securely and will be offset against the Client’s last invoice(s) when the work detailed in an Order has been completed. Also, if the Client does not pay a monthly invoice when it is due, the Company shall use the deposit to pay the invoice and will not do any further work until the deposit is replaced.
9.2 In the absence of detail on an Order or Quotation, the accepted payment schedule is:
40/40/20 whereby 40% of the contract total will be invoiced upon acceptance of the Order or Quotation, 40% upon ‘sign-off’ of the ‘visual concepts’, 20% on completion of the project/site or ‘launch’, or prior to the ‘launch’ should hosting be provided by another supplier.
9.3 The Client shall pay each invoice submitted by the Company in accordance with the terms as they appear on the invoice, or where otherwise not stated, within 30 Business Days of the date of the invoice and in cleared funds in accordance with clause 9.4 below. The invoice number shall be stated on all payments, and payments by BACS, CHAPS, Cheque and Bank Transfer are accepted.
9.4 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law, and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part.
The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Client.
9.5 In the event of overdue payment, interest shall accrue on the invoice amount at the statutory rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 or at the rate of 2 per cent over the base rate of Barclays Bank Plc (whichever should be the higher). In addition, at the Company’s discretion, a fee of £10 (to cover administrative expenses and not as a penalty) shall be charged per reminder for overdue payment submitted to the Client. The Company shall be entitled to submit such reminders weekly once the fees have become overdue. The Company expressly reserves all rights, at all times, to bring any legal action it considers appropriate to recover any unpaid sums.
9.6 Late payment shall be considered as constituting a material breach of the Contract entitling the Company (at its discretion) to cancel the Contract or to affirm the Contract and assert the usual remedies for breach.
9.7 In relation to ‘Hosting’, accounts that remain outstanding beyond the terms specified upon the invoice will result in the hosting service being automatically terminated. The re-establishment of hosting make take up to 72 hours and will incur an administration charge of £ 50.00, payable in advance.
9.8 In the event that the Services cannot be delivered either in full or in part due to the Client’s failure to assist or delay in assisting in the execution of the Order, the Company shall be entitled to charge to the Client an estimated amount, corresponding to the amount that would have been due had the Services been rendered in accordance with the Order. The Company shall be entitled to payment on the basis of the Company’s price list applicable from time to time for any additional work required because of the Client’s failure to assist or delay in assisting.
9.9 If the Client subsequently requires the Company to complete the work within a shorter time frame than specified in the Order, the Company reserves the right to charge additional monies to prioritise such projects ahead of pre-planned work.
10. Delays and Complaints
10.1 In the event that the Client proves that the Services are delayed or not in accordance with the Contract, the Company shall be obliged to remedy or redeliver, at its own discretion, without undue delay. In the event that the Services continue to be not in accordance with the Contract after reasonable attempts have been made to remedy this, the Client shall be entitled to cancel the Order (in accordance with clause 17.2 .1), provided that the breach is material.
10.2 Complaints concerning delays or breach of Contract shall be submitted immediately after the time when the Client became or should have become aware of the matter. If the Client fails to bring the defect (unless by its very nature it is impossible to ascertain within such a period) to the attention of the Company within 48 hours, the Client shall be deemed to have accepted the Services and shall not be entitled to assert remedies based on delays or breach of Contract.
10.3 The Client hereby acknowledges that certain Services rely upon goods and/or services being provided by third parties (‘Third-Party Services‘).
The Client acknowledges that the Third Party Services will be governed by that third parties’ terms and conditions and that the Company cannot provide any warranties in respect of the Third-Party’s Services and will not be liable to the Client for any delays and/or failings in respect of the same. Providers of Third Party Services may provide their own warranties to the Client, and the Client must satisfy itself whether or not such warranties (where given) are acceptable for the Client’s business purposes or risk management policies.
10.4 The Company’s only responsibility in respect of the Third Party Services is to take reasonable care and skill when selecting the providers of the same.
10.5 The Client’s exclusive remedies for late delivery or Services not conforming with the Contract are as specified in this clause 10 and, if the remedies set out in these Terms have been exhausted, the Client’s final remedy is limited to cancellation of the Contract, and the Company’s sole liability is to refund any payments for Services not conforming with the Contract, subject to the limitations set out in clause 11 below.
11.1 Except as expressly stated in this Clause 11, the Company shall have no liability to the Client for any loss or damage whatsoever arising from or in connection with the provision of the Services or for any claim made against the Client by any third-party.
11.2 Without prejudice to the generality of Clause 11.1 above, the Company shall have no liability for any losses or damages which may be suffered by the Client whether the same are suffered directly or indirectly or are immediate or consequential which fall into the following categories:
11.2.1 Any indirect or consequential loss arising under or in relation to the Contract even though the Company was aware of the circumstances in which such loss could arise;
11.2.2 Loss of profits; loss of anticipated savings; loss of business opportunity or goodwill;
11.2.3 Loss of data; and
11.2.4 Fraudulent clicks on any of the Client’s accounts managed by the Company.
11.3 To the extent such liability is not excluded by sub-clauses 11.1, 11.2 and clause 12 below, the Company’s total liability (whether in contract, tort (including negligence or otherwise)) under or in connection with the Contract or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise will not, in any event, exceed the total sum invoiced for the Services.
12. Other Limitations of Liability
12.1 The Company shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or websites on which a service is dependent or other deliveries from a third party. The Company shall use its reasonable efforts to assist in remedial measures if so requested by the Client. Any work connected with remedial efforts as described above shall be charged to the Client separately in accordance with these Terms or (at the Company’s discretion) the Company’s price list, applicable from time to time.
12.2 The Company shall not be liable for any changes made without notice by the Client or a third party employed by the Client to domain names, websites, links, technical setup etc. and affecting the Services delivered by the Company. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms or on the basis of the Company’s price list, applicable from time to time, at the Company’s discretion.
12.3 The Company shall use all reasonable endeavours to deliver Services relating to search engine optimisation, links, advertisements, banners, pay per click and google analytics in accordance with the guidelines applicable to the relevant search engines. However, the Company shall not be liable for delayed or non-conforming performance due to changes made to standard terms, assessment algorithms, search criteria, viewing policy, prices and campaign offers or other matters beyond the Company’s control and reserves the right to make changes to Services as a result of the same, without prior notice. In addition, the Company shall not be liable for other changes or discontinuation of search engines or other online services.
12.4 The Company shall not be liable for Services relating to search engine optimisation, link building, advertisements, banners or sponsorships leading to a minimum number of views, position or frequency in searches on relevant words or otherwise. In addition, the Company shall not be liable for ensuring that such Services lead to a certain volume of traffic, number of clicks, registrations, purchases or the like.
12.5 The Company shall not be responsible for URLs dropped or excluded by a search engine for any reason.
12.6 If the Client does not implement some or all of the Company’s recommendations, the Company shall not bear any liability for any lack of success experienced by the Client relating to the Services.
13. Intellectual Property Rights
13.1 It is the responsibility of the Client to ensure that they have the right to use any Intellectual Property Rights when they provide any text, image or representation (“Materials”) to the Company for incorporation into the Services and the Client hereby grants or agrees to procure the grant of (as applicable) an irrevocable licence to the Company to use such Materials for the purposes of providing the Services for the duration of the Contract.
13.2 The Client shall be responsible for ensuring that the contents of Materials which the Client has contributed or approved are not in contravention of legislation, decency, marketing rules or any other third-party rights. The Company shall be entitled to reject and delete such material without incurring any liability. In addition, the Company shall be entitled to cancel the Order.
13.3 The Client shall indemnify the Company against all damages, losses and expenses suffered or incurred by the Company as a result of the Materials which the Client has contributed or approved being in contravention of legislation, decency, marketing rules or any action that any such Materials infringe any Intellectual Property or other Rights of a third-party.
13.4 The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described above.
13.5 Unless expressly stated otherwise in these Terms or in an Order, the Intellectual Property Rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future shall vest in and be the property of the Company or the relevant third party from whom the Company has acquired a right of use with a view to executing the Order. The Client agrees to execute and deliver such documents and perform such acts as may be necessary from time to time to ensure such Intellectual Property Rights vest in the Company.
13.6 The Intellectual Property Rights as mentioned in Clause 13.5 shall not be used, assigned, distributed, copied, forwarded to online or offline activities by the Client without a separate, express written agreement.
13.7 If the Company makes software, scripts, ASP services etc., available to the Client as part of the execution of an Order, the Client shall only acquire a non-exclusive, personal non-transferable license to use such material until the Services under this agreement cease.
13.8 The Client hereby irrevocably licenses the Company to use and display the Client’s name, figure, logo, website page, or other images etc., as a reference on the Company’s website, other marketing materials, or types of media, including proposal documents whilst they, are a Client of the Company and for 36 months after the contract is completed, or terminates. The Client agrees to send the Company its most recent logo or figure as and when it is amended from time to time.
14. Third Party Software or Plugins
14.1 The Client acknowledges that certain Services may involve the purchase, or licensing, of third party software or plugins and that the Client may be required to purchase from, or enter into, a licence agreement directly with such third-party. Accordingly, unless otherwise expressly stated within the Quotation, all prices on an Order or Quotation shall be exclusive of costs for the acquisition of any third party software, plugin or licenses.
14.2 In the event that the costs of any required third-party software, plugin or license is/are not expressly included within the quotation, the Client agrees to either; supply the Company with the material required OR to meet the cost of the Company’s disbursement in facilitating the acquisition of any such requirement either in advance or as otherwise agreed. The Client also acknowledges that the Company cannot be held liable for any delay caused by the Clients failure to supply or pay for any such requirement.
14.3 Should the Client utilise the Content Management System (CMS) to self-install or introduce a Plugin or functionality that could negatively impact or have known security issues or threaten the operating characteristics of the website’s performance or hosting provision. Then the Company is entitled to immediately suspend its hosting service and undertake any remedial action required without notice.
In doing so, it is mutually accepted that the Company will apply an ‘ad-hoc’ hourly charge at its prevailing rate and reserves the right to terminate any services without notice.
15. Domain Names
15.1 The securing, registration, re-registration or transfer of domain names remains the responsibility of the Client to undertake themselves unless a Client expressly requests, in writing, that the Company secures or otherwise administers the domain name on the Client’s behalf. In doing so, it is mutually understood that any such request by the Client only becomes effective once the Company has acknowledged any such instruction in writing. It is further understood that the Company cannot guarantee the availability of a particular, or preferred, domain name until it has been secured and that the Company has confirmed this in writing.
15.2 If the Company secured the domain name on the Client’s behalf, then the Company shall charge an administration fee per their standard hourly rate over and above the cost of the domain name.
15.3 If the Client secures the domain name, the Client acknowledges that they are responsible for providing the Company with all information required to activate, host, direct, or administer the Clients website, as required, and that the Client must do this within 24 hours of any such request from the Company. The Client also acknowledges that the Company cannot be held responsible for delays or additional work arising from the Clients failure to secure, register, instruct or otherwise act in a timely fashion.
16. Hosting Services
16.1 The Client is granted the right to use the Company’s Hosting Services in accordance with these ‘Additional’ Conditions.
16.2 Upon ‘Order’, the Company will reserve space to provide website hosting for the Client for a period not less than 12 months.
16.3 The Client agrees to pay the Company fees in advance of the provision of services unless the Company otherwise decides.
Should the Company provide the Services before receiving the Fee, the Client must pay all fees no later than fourteen(14) days following the date of receipt by the Client of the relevant invoice from the Company or as specified in the invoice.
The Company reserves the right to decline the provision of Service if the Client fails to pay the Company’s invoice for Fees under the terms of the Agreement and is entitled to suspend Services for any period the payment of Fees remains overdue.
16.4 The Company shall give the Client not less than thirty(30) days written notice before each anniversary of the Commencement Date of any Fee increase.
16.5 The Client shall be entitled to terminate these Conditions, giving not less than fourteen(14) days prior written notice to the Company to expire at the end of the Initial Period and thereafter on any anniversary of the end of the Initial Period.
16.6 Where the Company has increased fees without prior notice, the client shall have the right to cancel their hosting up to fourteen (14) days thereafter and will be charged at the pre-increase rate on a pro-rata basis for up to a maximum of twenty-one (21) days while they arrange a new provider. (See 16.7)
Thereafter, any continuation of hosting will be charged at the increased fee rate, and the hosting provision will be considered an ‘Order’ as in 16.2, and the twelve(12) monthly service provisions shall prevail, and full payment will be due under the terms.
16.7 Upon receipt of ‘written’ notice and subject to the terms, the Company will assist the Client in transferring hosting to a provider of their choice subject to an ad hoc time-based Fee at the Company’s prevailing rate.
If the Client fails to give prior notice, the twelve(12) monthly service provisions shall prevail, and full payment will be due under the terms.
Should the Client discontinue using the hosting provision within the twelve(12) month term, for whatever reason, the Client acknowledges that they will have no entitlement to a refund and no ‘Set-off’ will be allowed.
16.8 Should the Client operate any program which could negatively impact or have known security issues that threaten the operating characteristics of the hosting provision, then the Company is entitled to immediately suspend the provision of hosting without notice.
16.9 Under the terms, when a price increase occurs, Source will issue a Service Level Agreement (SLA) to include the following:
- Agreement Overview
- Goals & Objectives
- Periodic Review
- Service Agreement
- Service Scope
- Customer Requirements
- Service Provider Requirements
- Service Assumptions
- Service Management
- Service Availability
- Support Requests
- Service Credits
16.10 The Company’s hosting services are subject to periodic “scheduled” or “unscheduled” maintenance, and the following will apply where:
a) “scheduled” maintenance includes “downtime”; the Company may
advise the Client up to seven(7) days in advance.
b) “unscheduled” maintenance is undertaken, the Company may,
where possible, inform the Client up to two to three(2-3) days in
16.11 “Downtime” arising from “scheduled” or “unscheduled” maintenance is excluded from any “Compensation or Service Credits” under the SLA.
16.12 The Company may modify the Service periodically, with or without notice.
17. Confidentiality and Personal Data
17.1 A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, or initiatives deemed confidential which have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any additional confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as ‘need to know’ to discharge the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Contract.
17.2 During the term of the Contract and for a period ending five (5) years from the date of its conclusion, the Company shall take the same care as the Company uses with its own confidential information, to avoid, without the Client’s consent, the disclosure to any third party (except a subcontractor working on the Services who is subject to similar undertakings of confidentiality) of any of the Client’s business or operational information which the Client has designated as confidential.
17.3 The obligation in Clause 17.2 shall not apply to any information which is or becomes publicly available otherwise than through a breach of this agreement, is already or rightly comes into the Company’s possession without an accompanying obligation of confidence, is independently developed by the Company, or which the Company is required to disclose by law.
17.4 During the term of the Contract and for a period ending five (5) years from termination thereof, the Client will not disclose to any persons within its organisation that do not have a ‘need to know’, or to any third party, any information and non-Client materials provided by the Company concerning the method or approach the Company uses in providing the Services.
17.5 Each party agrees to comply with its respective obligations under the General Data Protection Regulation (GDPR) Regulation (EU) 2016/679) until superseded by the adoption of UK law and, or Act of Parliament, at which point the latter will take precedence.
17.6 The Client shall be obliged to indemnify the Company for any loss, including costs incidental to legal proceedings, suffered by the Company as a result of the processing of personal data which the Client has contributed being in contravention of the General Data Protection Regulation (GDPR) Regulation (EU) 2016/679)), or a local or marketing law. In addition, the parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described in the present clause.
17.7 In addition to 17.1, the Company or Client may request a separate “formal’, signed NDA at any time, which will not be unreasonably withheld.
18. Data Protection
18.2 Without adequate precaution, it is possible for a website to use third-party tracking cookies without a user’s knowledge or permission, and therefore privacy issues are a “cause for concern”.
While the Company may place a generic ‘Free’ version of a ‘Cookie consent’ banner on a Client’s ‘unique’ website, the Company does not guarantee that it will be ‘fit for purpose’, and the Client should consider anything less than a suitable ‘Paid’ version as ‘inadequate’.
As such, it is mutually accepted that the Client remains responsible for its legal obligations and compliance with Privacy legislation and for instructing and paying the Company to implement a suitable Cookie banner with adequate consent options.
19. Term, Termination and Assignment
19.1 The Contract shall renew automatically for a further term of one year at the end of each year unless and until either party notifies the other of its wish to terminate the Contract at the expiry of the current year by giving the other party at least thirty(30) days written notice, unless otherwise expressly stated, to expire at the end of the contract term.
19.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:
19.2.1 commits a material breach of the Contract and (if such breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing of the breach; or
19.2.2 becomes or is insolvent or is unable to pay its debts (within the meaning of the Insolvency Act 1986) or (except for the purposes of a genuine amalgamation or reconstruction) a petition is presented or meeting convened or resolution passed for winding up the defaulting party or the defaulting party enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver, administrator, or administrative receiver appointed over all or any part of its assets or the defaulting party ceases to carry on all or a substantial part of its business.
19.3 The Company shall, in addition to all other rights and remedies under these Terms, be entitled to terminate this Contract without notice in the event that any of its charges for the Services are not paid in accordance with these Terms.
19.4 Upon termination, for whatever reason, the parties shall be obliged to return all materials received from the other pursuant to the Contract without undue delay. If relevant, the Client shall be obliged to remove codes, etc., from websites without undue delay. If the Client fails to do so, the Company shall be entitled to invoice the Client in line with its then current terms and conditions for subsequent Services without such invoicing amounting to a waiver of the Company’s right to terminate the Contract.
19.5 The Client shall not be permitted to assign or transfer all or any part of its rights or obligations under the Contract and these Terms without the Company’s prior written consent.
19.6 The Company shall be entitled to assign or subcontract any of its rights or obligations under the Contract, and these Terms and the Client acknowledges that third parties will provide certain elements of the Services.
20. Force Majeure
20.1 Neither party shall be held liable for a Force Majeure Event.
20.2 If a party believes that a Force Majeure Event has occurred, such party shall immediately inform the other party of the start and end of the Force Majeure Event.
20.3 Notwithstanding the other provisions of the present Terms, each party shall be entitled to terminate the Contract without liability to the other by written notice to the other party if the performance of the Contract is impeded for more than six (6) months due to a Force Majeure Event.
21.1 The Company reserves the right to modify or discontinue, temporarily, or permanently, the Services, with or without notice, to the Client and the Company shall not be liable to the Client or any third-party for any modification to, or discontinuance of, these Services save for the return of any prepaid sums in connection with the provision of the Services which are subsequently not provided.
21.2 In the event the Contract or Service delivery is in “dispute” where fees remain outstanding, the Company reserves the right to suspend its services and withdraw the privilege of the use of any website or other materials produced for the Client.
21.3 The Company shall be free to provide its Services to third parties whether during or following the provision of the Services to the Client.
21.4 During the term of the Contract and for a period of twelve (12) months thereafter, the Client agrees not to employ or engage or offer to employ or engage anyone designated by the Company to work on the Services.
21.5 The failure of either party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that party’s right later to enforce or to exercise it.
21.6 If any term of these Terms is found illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining Terms, be deemed omitted from these Terms and shall in no way affect the legality, validity or enforceability of the remaining Terms which shall continue in full force and effect and be binding on the parties to the Contract.
21.7 Any valid alteration to or variation of these Terms must be in writing signed on behalf of each of the parties by duly authorised officers.
21.8 A person who is not a party to the Contract shall not have any rights under or in connection with it.
21.9 All notices must be in writing to Source Design Limited, 2 Nettles Lane, Shrewsbury, SY3 8RJ, or such address as is advised by the Company.
22. Entire Agreement
The parties acknowledge and agree that the Contract supersedes any prior agreement, understanding or arrangement between the parties, whether made orally or in writing, and constitute the entire agreement between the Company and the Client relating to these Services. Therefore, except as expressly provided, all other conditions and warranties (implied, statutory or otherwise) are hereby excluded to the fullest extent permitted by law.
23. Law and Jurisdiction
23.1 The Company and the Client shall be obliged to attempt to settle any disputes arising between them, including disputes relating to the existence or validity of the Contract through negotiation provided always that either party shall be entitled at all times to exercise any of its other remedies including through taking legal action.
23.2 The Contract shall be governed by and construed in accordance with English law, and the parties hereby agree to submit to the non-exclusive jurisdiction of the English courts.
Doc Ref: V10 07_11_22