Terms & Conditions
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
The following definitions and rules of interpretation apply in these Conditions.
|Business Day||a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.|
|Charges||the charges payable by the Customer for the supply of the Services in accordance with clause 5.|
|Conditions||these terms and conditions as amended from time to time in accordance with clause 12.4.|
|Commencement Date||has the meaning given in clause 2.1|
|Contract||the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.|
|Customer||the person or firm who purchases Services from the Supplier as set out in the Specification.|
|Data Protection Legislation||the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications.|
|Deliverables||the deliverables set out in Schedule 1.|
|Distinctive Customer Features||any Intellectual Property Rights including content, features or layouts owned by the Customer which do not form part of the generic functionality of the Services.|
|Intellectual Property Rights||patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.|
|Services||the maintenance and support services, including the Deliverables, supplied by the Supplier to the Customer for the Website, as set out in the Specification.|
|Specification||the description or specification of the Services as set out in Section 1.|
|Supplier||Design by Day Limited registered in England and Wales with company number 06971762 and at its registered office of Suite 4A, Level Street, Manchester, M1 1EA.|
|UK Data Protection Legislation||all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.|
|Website||the website on which the Services are to be provided, as set out in Specification.|
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality)
- A reference to a party includes its successors or permitted assigns;
- A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
- Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- A reference to writing or written includes emails and where applicable, any Supplier online form, but no other electronic methods.
- The headings to the clauses, schedules and paragraphs of this Contract will not affect the interpretation.
- The provisions of the Schedules shall form part of this Agreement as if set out herein.
1.3 In the case of conflict or ambiguity between any provision contained in the body of this agreement and any provision contained in any Schedule, the provisions in the body of this Agreement shall take precedence.
2. Basis of contract
2.1 There shall be no contract between the Supplier and Customer until such time as the Supplier has issued written confirmation to the Customer that the Customer’s order for Services has been accepted and on which date the Contract shall come into existence (Commencement Date) and shall continue, unless terminated earlier in accordance with its terms, until either party gives to the other not less than 3 months’ written notice to terminate, expiring on or after the first anniversary of the Commencement Date.
2.2 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract. The Customer further acknowledges that the Contract excludes any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, 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 have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Supply of Services
3.1 The Supplier shall during the Term supply the Services to the Customer in accordance with the relevant Specification in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill and in accordance with the Specification.
3.5 The Supplier accepts no liability for services, and gives no warranty or guarantee as to the quality or suitability of services provided by third parties whether or not provided through the Supplier or directly to the Customer, including but not limited to the hosting of the Customer’s Website, domain name, providers, registrars, website software, plugins, frameworks, code libraries, security frameworks & SSL certificate provider, and third party payment gateways. Where the Supplier is engaged to provide Services which are based on or rely on the provisions of third party services or systems, the extent of the Supplier’s Services are set out in the Specification.
3.6 Unless otherwise set out in the Specification, the Supplier does not accept liability or responsibility for on-going support and maintenance to your Website, including (without limitation):
- Taking back-ups of your Website, content and database;
- Updating CMS;
- Updating plugins, extensions or other software required for your Website;
- Ensuring that your Website admins are using secure passwords
- Form testing
- Ensuring all Website functionality is working as intended including ecommerce functionality and receipt of payments;
- Communicating with any third party that hosts your Website should any hosting issues arise;
- Migration of your Website from one hosting provider to another; or
- Any support or maintenance of email accounts.
3.7 Notwithstanding clause 3.9, the Customer accepts that:
- Bug fixing services are limited to bug fixing as determined by the Supplier, and such service does not include the addition of new features to the Website;
- Plug in’s will be updated in accordance with the Specification, on a weekly or fortnightly basis, and new versions of a plug in will not be installed instantaneously, but installed when rolled out by the Supplier;
- Particular website hosting companies do not allow certain plug in’s to operate on their servers, where this impacts on the functionality of the Website the Supplier will use its reasonable endeavours to find an alternative solution; however if the only viable solution is developing a bespoke plug in for the Customer this will fall outside of the scope of the Services and additional Charges will be payable as per clause 5.
- the Services do include updates to third party plug ins, and if such plug ins are incompatible with general updates to the Website, the Supplier will use its reasonable endeavours to find an alternative solution; however if the only viable solution is developing a bespoke plug in for the Customer this will fall outside of the scope of the Services and additional Charges will be payable as per clause 5;
- the Website will be backed up in accordance with the Specification on a daily, weekly or monthly basis, and if the Website is compromised by malware the Supplier will revert to a previous unaffected version of the Website held by the Supplier or hosting company. If the Customer has added content to the Website between the back up and the Website being compromised any such content will be irrecoverable;
- the Services includes an element of time, as set out in the Specification for services such as minor bug fixing, ‘How To’ support and/or minor Website tweaks/content for the avoidance of doubt any unused time in a particular month will not roll over into the subsequent month.
3.8 The Customer appoints the Supplier to provide the Services on an exclusive basis, during the term of the contract the Customer shall not engage any person or third party to work on the Website, or install updates manually or automatically. For the avoidance of doubt a breach of this clause. 3.8 is a material breach of the Contract.
4. Customer’s obligations
4.1 The Customer shall:
- ensure that the terms of this agreement including the level of Specification (Essentials, Enhanced or Premium) are complete and accurate;
- co-operate with the Supplier in all matters relating to the Services;
- provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
- obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
- comply with all applicable laws;
- Maintain any licences required to enable the legal and authorised use of any licenced fonts requested by the Customer.
4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
- without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
- the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
- the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. Charges and payment
5.1 The Charges for the Services are set out in Schedule 1.
5.2 The Supplier shall be entitled to charge the Customer a hourly rate, as set out in Schedule 1, in respect of any additional work, over and above provision of the Services including (without limitation) Bug Fixing and ‘How To’ support over the allocated time included within the Specification.
5.3 The Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
5.4 Unless otherwise agreed between the parties, the Supplier shall invoice the Customer monthly in arrears.
5.5 The Customer shall pay each invoice submitted by the Supplier:
- Within 30 days of the date of the invoice; and
- in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
5.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.7 will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5% a year for any period when that base rate is below 0%.
5.8 The Customer shall pay all amounts due under the Contract shall be paid 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 at any time, without limiting its other rights and remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6. Intellectual property rights
6.1 Subject to clause 6.2, all Intellectual Property Rights in the Services and the Deliverables shall be and remain vested in the Supplier apart from Distinctive Customer Features. All Intellectual Property Rights in the Distinctive Customer Features shall be and remain vested in the Customer.
6.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to licence such rights to the Customer.
6.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 6.
6.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
7. Data protection
7.1 The parties undertake to comply with the provisions of the Data Protection Legislation in so far as the same relates to the provisions and obligations of this Agreement
8. Limitation of liability:
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
8.1 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; and
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1:
- the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss, to include but not be limited to any loss relating to failure of or the Customer’s misuse of the Deliverables, and arising under or in connection with the Contract;
- the Supplier shall not accept liability to the Customer for any loss or damage suffered arising from the Customer’s failure to comply with the terms of this Contract; and
- the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of sums owing under the Contract at the date of the liability being incurred.
8.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 The Customer may be engaged to carry out remedial works to any damaged or defective Deliverables at the charges set out in Schedule 1.
8.5 This clause 8 shall survive termination of the Contract.
9.1 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
- the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach upon being notified in writing to do so;
- the Customer becomes or is reasonably believed to be about to become subject to insolvency proceedings to include administration, receivership or other voluntary arrangement with creditors;
- the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
- the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil the obligations under the Contract has been placed in jeopardy.
9.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 7 days after being notified in writing to do so.
10. Consequences of termination
10.1 On termination of the Contract:
- the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
- the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for;
- the accrued rights, remedies, obligations and liability of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
- clauses which expressly or by implication survive termination shall continue in full force and effect.
11. Force Majeure
11.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, 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.
11.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
11.3 If, in the event that a Force Majeure Event, the Supplier cannot provide the Services to the Customer for a period of 21 days or more, either party may terminate the contract,
12.1 Assignment and other dealings.
- The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
- The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
- Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2(b).
- Each party may disclose the other party’s confidential information:
- to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12.2; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12.3 Entire agreement.
- The Contract 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.
- Each party acknowledges that in entering into the Contract 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12.7 Nature of Relationship
- This agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
- Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail.
12.9 Third party rights.
- Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
- The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
12.10 Governing law.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be 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 (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.