The definitions and rules of interpretation in this condition apply in these conditions. Company: Funny Shaped Balls Ltd Conditions: these Terms and Conditions of Supply. Contract: any contract between the Company and the Customer for the Supply of any Services, incorporating these conditions. Customer: the person, firm or company who purchases the Services from the Company. Design Fee: the fee for the design of the Website. Effective Date: the date upon which a written acknowledgement of order is issued and executed by the Company pursuant to Condition 2.5. Minimum Term: the initial 12 month Term of the Contract. Personal Data: shall have the meaning given to it in the Data Protection Act 1998. Services: any website design services agreed in the Contract to be performed by the Company for the Customer (including any part or parts of them). Supply: the provision of any Services by the Company to the Customer. For the avoidance of doubt, any Services so provided are Supplied. Term: the period of the Contract. Website: the Customer’s www.website comprising all pages described. Website Specification: the specification for the Website.
A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
Words in the singular include the plural and in the plural include the singular.
A reference to one gender includes a reference to the other gender.
Condition headings do not affect the interpretation of these Conditions.
APPLICATION OF CONDITIONS
Subject to any variation under Condition 2.3, the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
These Conditions apply to the Supply of any and all Services by the Company and any variation to these Conditions and any representations about any Services shall have no effect unless expressly agreed in writing and signed by a Director of the Company. The Customer 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. Nothing in this Condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
Each order or acceptance of a quotation for Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Services subject to these Conditions.
No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued and executed by the Company.
SUPPLY OF SERVICES
In consideration for the payment of the Design Fee, the Company will design the Website.
Unless otherwise agreed between the Customer and the Company, the Customer agrees to provide the component parts of the Website (namely the text and images) within thirty (30) days. No refund will be made in the event that the Customer fails to provide sufficient content to complete the design of the Website.
Proofs of all work will be submitted for Customer’s approval and the Company shall incur no liability for any errors not corrected and communicated by the Customer in proofs so submitted. Any alterations suggested by the Customer and additional proofs necessitated thereby may result in additional charges.
All content must be supplied in a suitable digital format unless agreed otherwise beforehand. Failure to supply material in digital format may result in extra charges being made for processing content for use on the Website. Where the content which is provided is in a form where a significant amount of copywriting is required, a further charge may be made.
The Customer grants the Company permission to utilise all content, text, logos and any other company materials or identity for the purposes of creating the Website.
The Customer warrants that all content and any text, photographs and/or images provided to the Company belongs to or is licensed to the Customer and that any and all work done in accordance with the Customer’s instructions with respect to the design of the Website shall not infringe any copyright, trade mark or other intellectual property right of any third party. The Customer shall fully and promptly indemnify the Company against all liabilities, costs, damage, damages and expenses which the Company may incur as a result of any and all work done as aforesaid which infringes any third party intellectual property right and otherwise from the use of any material which the Company may add to the Website.
A design credit with a link to the Company’s website will appear on the main home page of the Website either in text or graphic format. The link will be designed to fit the overall design of the Website. The Company retains the right in all cases to use the Services in any manner, at any time and in any part of the world, for the purposes of advertising or otherwise promoting the Company’s work.
The Customer must provide the Company with copies of the Customer’s terms and conditions and any privacy statement that the Customer wishes to be incorporated into the design.
In the event that the Company is unable to complete a Website because of lack of text and/or pictures, then text may be added using Latin text and pictures using appropriate library pictures. At this point the Website will be considered completed and invoiced accordingly.
No content provided to the Company may contain any of the following:
Illegal Material – this includes copyrighted works, commercial audio, video, or music files, any defamatory content and any material in violation of any local or international regulations or laws.
Adult Material – includes all pornography and otherwise obscene content. The designation of “adult material” and ‘’obscene’’ is left entirely to the discretion of the Company.
Warez – includes pirated software, ROMS, emulators, phreaking, hacking, password cracking, IP spoofing and encrypting of any of the above or any information about how to create such material.
Also included in the above prohibitions are links to sites containing such content.
The Customer agrees to indemnify and hold harmless the Company against any breach by the Customer of Condition 3.10.
The Company will provide the Customer with the Company’s estimated timescale for progress and completion of the Services and the Company will use its reasonable endeavours to meet those timescales (as long as the Customer performs the Customer’s obligations promptly) but, unless the Company agrees otherwise, any timescales or projected completion dates are estimates only and the Company cannot guarantee that they will be met. In any event, the Company shall have no liability to the Customer if the Company is delayed in performing or is unable to perform any of its obligations under the Contract due to circumstances beyond its reasonable control.
The acceptance procedure will be as follows:
When the Company considers the design to be completed, the Website will be uploaded to a test domain for the Customer to preview and the Customer will receive notification by telephone or email.
The Customer will have seven days from the notification to carry out an appraisal of the design and inform the Company of any changes required to correct any errors.
The Company will carry out the agreed amendments within seven days. The Customer will then have a further seven days to appraise the changes to the design and inform the Company of any errors in the changes.
After this period the design is considered as accepted and the Customer will be invoiced for the outstanding costs and any further amendments are chargeable. The Website will not be launched onto the Customer’s domain until the final payment has been received by the Company and has cleared the Company’s account.
Any further amendments are then chargeable.
All information, drawings, specifications, documents, design material and all other data which the Company may have imparted and may from time to time impart to the Customer relating to its know-how, business, prices, services, the Website, contracts (including the Contract), website design and content is proprietary and confidential. The Customer hereby agrees that it will use such confidential information and all other data solely for the purposes of the Contract and that it will not at any time during or any time after the completion, expiry or termination of the Contract use or disclose the same whether directly or indirectly, to any third party without the Company’s prior written consent.
The Customer acknowledges that any and all of the copyright, trademarks, trade names, patents and other intellectual property rights created, developed, subsisting or used in or in connection with the development and design of the Website and all rights in any core files created or developed by the Company in connection with the development and design of the Website are and shall remain the sole property of the Company and the Company hereby grants to the Customer a non-exclusive right to use all such rights in accordance with the Website Specification. The Customer shall not at any time after the completion, expiry or termination of this Contract in any way question or dispute the ownership by the Company thereof, nor shall the Customer reproduce any such rights, nor cause or permit them to be reproduced without the written consent of a Director of the Company. Without limitation, copyright and any and all other rights in the Website design source code shall be retained solely by the Company. In the event that new inventions, designs or processes evolve in the performance of or as a result of this Contract, the Customer acknowledges that the same shall be the property of the Company unless otherwise agreed in writing by the Company.
The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Company under the Contract, and that the processing of that Personal Data by the Company for the purposes of and in accordance with the terms of the Contract will not breach any applicable laws (including the Data Protection Act 1998).
The Company warrants that:
it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Company on behalf of the Customer; and
it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or
corruption of Personal Data processed by the Company on behalf of the Customer.
In no circumstances shall the Customer have the right to cancel this Contract without the Company’s written agreement; if such agreement is given, the Customer will indemnify the Company against all losses (including loss of profit) suffered by the Company arising out of such cancellation.
Should the Company require the Customer to perform any action or supply material necessary for the Company to complete the Contract, then the Company shall be entitled to treat any failure by the Customer to comply with the Company’s request, as a material breach of the Contract. The Company shall, in consequence thereof, be entitled to make an appropriate charge to cover reasonable costs, expenses and loss of revenue caused by such a breach.
PRICE AND PAYMENT
Unless otherwise stated all prices are exclusive of VAT, where VAT is applicable.
The Customer shall pay the Design Fee to the Company (with time for payment being of the essence) as follows:
The Customer shall make payment of a non-refundable deposit to the Company. The deposit payable to the Company shall be 50% of the Design Fee, unless otherwise agreed in writing by the Company in advance; and
Payment for the Services shall be made in full upon completion of performance of the Services.
In respect of any Contract where the completion date is more than two months after the Contract date, then the Company may increase the Design Fee pro rata to correspond with any increase in the price of labour and/or other pertinent costs between those two dates.
The Company reserves the right to vary the Design Fee in the event of increased costs caused by or attributable to:
delay caused by failure of the Customer to provide appropriate, adequate, correct or complete information to enable timely performance of the Services; and/or
change or alteration in design, quality or specification details by the Customer; and/or
correction of errors made by the Customer.
In the price of the website design cost we have allowed for no more than one visit to the clients’ premises. If further visits are requested/required then the cost will be £50 an hour on site, travel time taken each way from our Poole studio and £0.45 per mile for mileage costs.
Should the Customer fail to make any payment required in respect of any work to be carried out on his behalf, whether prior to commencement of such work or during the production of such work, then the Company shall have the right to deem such failure to be a repudiation of the Contract (in which case it shall so inform the Customer in writing) without prejudice to any other right or remedy of the Company, the Company may:
Cancel the remainder (if any) of the Contract concerned and recover from the Customer damages for any loss suffered by the Company as a result of such cancellation and/or
Cancel any other contract or the remainder of any other contract which the Company may have with the Customer and recover from the Customer damages for loss suffered by the Company as a result of such cancellation; and
Claim interest from the due date on the unpaid amount at the annual rate of 5 % above the base lending rate from time to time of Lloyds TSB Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment; or
Claim interest from the due date on the unpaid amount accruing on a daily basis at the rate prescribed by the Late Payment of Commercial Debts (interest) Act 1998; and
Suspend any further work under the Contract or any other contract until payment is made in full and in addition the Company may, by notice in writing to the Customer, treat any such Contract as repudiated by the Customer and to recover all losses and expenses suffered by the Company as a result of such repudiation.
WARRANTIES AND LIABILITY
The Company warrants that (subject to the other provisions of these Conditions) any Services will be performed with reasonable skill and care.
However, we make no representation and exclude any warranty, express or implied, as to the availability, quality, accuracy, timeliness, completeness, performance or fitness of the Service.
All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 2 of the Supply of Goods and Services Act 1982 ) are, to the fullest extent permitted by law, excluded from the Contract.
Nothing in these Conditions excludes or limits the liability of the Company:
for death or personal injury caused by the Company’s negligence; or
under section 2(3), Consumer Protection Act 1987; or
for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
for fraud or fraudulent misrepresentation.
Subject to Condition 5.3 and Condition 5.4:
the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Design Fee; and
the Company shall not be liable to the Customer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever or howsoever caused, which arise out of or in connection with the Contract.
The Company hereby excludes itself, its Employees and or Agents from: all and any liability for loss or damage caused by any inaccuracy; omission; delay or error, whether the result of negligence or other cause in the production of the web site; All and any liability for loss or damage to clients artwork/photos/content and any digital resources, supplied for the site. This is whether the loss or damage results from negligence or otherwise.
The Contract will come into force on the Effective Date and will continue in force for the Minimum Term and thereafter indefinitely, unless and until terminated in accordance with this Clause 6.
Unless the Customer gives written notice of termination to the Company at least 30 days prior to the last day of the Minimum Term, the Term of the Contract shall continue indefinitely beyond the expiry of the Minimum Term for successive periods of 12 months duration, until such time as the Customer gives the Company 30 days written notice of termination, such notice period to expire on the last day of the relevant 12 month period.
Without prejudice to any other available rights or remedies, the Contract may be terminated immediately upon written notice from the Company to the Customer, if:
the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment; or
the Customer commits a recurring or material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within 14 days of receipt of written notice of the breach from the Company.
The Contract will terminate without further action or notice by the Company if the Customer becomes bankrupt, goes into liquidation, suffers or makes any winding up petition, makes an arrangement with the Customer’s creditors, has an administrator, administrative receiver or receiver appointed or suffers or files any similar action in consequence of debt (or any other similar action in any jurisdiction).
On termination of the Contract for any reason:
the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt; and
the accrued rights and liabilities of the Company as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
The waiver by the Company of a breach or default of any provision of this Agreement by the Customer shall not be construed as a waiver of any succeeding breach of the same or other provisions of this Agreement.
The Customer shall not assign, sub-contract or otherwise transfer this Contract without the prior written consent of the Company. For the avoidance of doubt, the provisions of this Condition shall not apply to the Company.
This Contract sets out the entire agreement of the parties and supersedes all prior agreements and understandings relating to its subject matter.
GOVERNING LAW AND JURISDICTION
This Contract shall be governed by English law and the parties shall submit to the exclusive jurisdiction of the English Courts.