Terms & Conditions
STANDARD TERMS AND CONDITIONS
(1.1) In these terms and conditions:- "Company" means First Internet Marketing Ltd (Company No: 3909773) whose registered office is at 41 Blackfriars Road, Salford, Manchester M3 7DB, and "Client" means the person or entity which has agreed to purchase goods and/or services from the Company and whose details are set out in the attached client agreement for services ("Client Agreement"). "Work" means the work that the Client has instructed the Company to carry out pursuant to this Agreement, including development, maintenance and/or hosting of the Client's website (the "Website") (as set out in the Client Agreement), and "Agreement" means the overall agreement between the Company and the Client in relation to the Work comprising of these terms and conditions ("Conditions") and the Client Agreement. "Specification" means the specification for the Website as greed in writing between the parties. "Intellectual Property Rights/IPR" means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trademarks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off. "Input Materials" means any content provided to the Company by the Client from time to time for incorporation in the Website. "Server" means the server provided by a third party upon which the Website shall be hosted. "Company IPR" means all Intellectual Property Rights in the Works and the Website including its source code, excluding any Input Materials and Third Party Products. "Third Party Products" means those third party software products compiled in the Website.
(1.2) Words in the singular include the plural and vice versa and the masculine shall include the feminine and neuter and vice versa.
(1.3) 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.
(1.4) References to "including", "include(s)" and "in particular" or anything similar are illustrative only and none of them shall limit the sense of the words preceding or following them and each of them shall be deemed to incorporate the expression "without limitation".
(1.5) References to "content" include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a user of that website.
(2) These Conditions take precedence over each conflicting term and condition which may be put forward by the Client at any time. These Conditions are available on the Company's website at all times and should be viewed by the Client prior to entering into the Agreement. Upon entering into the Agreement, the Client confirms that it has read these Conditions and accepts them in their entirety.
(3) The Client and the Company have agreed the basic scope and nature of the Work including the Specification prior to entering into the Agreement. Any changes to the scope and/or nature of the Work or the Specification after the Agreement has been entered into shall be agreed by both the Client and the Company and evidenced in writing. The Company reserves the right to alter the agreed price and to extend timescales to reflect the changes in scope and/or nature of the Work or the Specification.
(4) The Company reserves the right to control and restrict any content on the Website and shall have sole discretion to delete and remove, without advance notice, any information which may infringe any applicable laws, regulations, third party's Intellectual Property Rights, or which is deemed by the Company as illegal, tortious, false, misleading, fraudulent, libelous, defamatory, immoral, blasphemous, offensive, pornographic, seditious, threatening, liable to incite racial hatred or acts of terrorism, menacing or otherwise not in conformity with the policies and style of the Company ("Inappropriate Content"). The Client acknowledges that the Company may unilaterally write or re-write reasonable rules and regulations necessary for the orderly operation of the Company's network and that the Client will be bound accordingly.
(5) Although the Company shall have the right to approve the design, content and links to and from the Website, the Company assumes no responsibility to do so. The Client further acknowledges that the Company has no control over any content placed on the Website by users of the Website and the Company does not purport to monitor the content of the Website. The Client agrees to be solely responsible for the content of the Website and the accuracy of all information provided therein and shall immediately notify the Company upon becoming aware of any allegation that the Website contains any Inappropriate Content.
(6.1) The Client grants to the Company an indefinite, irrevocable, royalty-free, unrestricted right to use, transfer, modify and maintain Input Material. The Client represents and warrants that: (a) the use, as contemplated by the Agreement, of the Input Material shall not infringe any third party's Intellectual Property Rights; (b) Input Material does not contain any Inappropriate Material; and (c) there is no impediment to the Client's performance of its obligations hereunder.
(6.2) The Client shall indemnify the Company and keep the Company at all times fully indemnified from and against all actions, proceedings, claims, demands, costs (including without prejudice to the generality of this provision the legal costs of the Company on a solicitor and own client basis) and other liabilities however arising directly or indirectly as a result of any breach or non-performance by the Client of any Client's undertakings, covenants, warranties or obligations under the Agreement.
(7.1) The Client acknowledges that the Company's ability to develop the Website and any production timelines are dependent upon Client input, Input Material and approvals at each stage of the development process (which the Client agrees to provide in a timely manner). Without this, development timelines may vary. Whilst timelines are given in good faith, the Company shall not be liable for any failure to produce the Website within a reasonable period following any agreed dates. Time shall not be of the essence.
(7.2) Once the Company has completed the design and development of the Website in accordance with the Specification, the Company shall run reasonable acceptance tests to test and verify that the Website operates substantially in accordance with the Specification ("Acceptance Tests").
(7.3) If the Website fails to pass the Acceptance Tests as a result of any act or omission of the Company, the Company shall use its reasonable endeavours to remedy the same and undertake further Acceptance Tests. If any failure is due to the act or omission of the Client, then the Client shall pay the Company for all such additional charges (on a time and material basis) at the Company's then current rates for time spent by the Company in remedying the same and undertaking further Acceptance Tests.
(7.4) Acceptance of the Website shall be deemed to have taken place upon the occurrence of any of the following events (the "Acceptance Date"): (a) the Client uses any part of the Website for any revenue-earning purposes or to provide any services to third parties other than for test purposes or the Website otherwise goes live; or (b) the Client unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which the Company is ready to commence running such Acceptance Tests or retests.
(7.5) The Company shall host the Website on the Server as from the date the Website is available for Acceptance Tests. The hosting shall be in accordance with the third party provider's terms and conditions.
(8) Any Third Party Products shall be supplied in accordance with the relevant third party's standard terms. Any fees incurred by the Company in respect of the same shall be chargeable to the Client.
(9) The Client acknowledges and agrees that the Company may provide services to other persons or businesses including those in the same or similar line of business as the Client.
(10) The Company shall, subject to the Client paying the Company's charges (on a time and material basis) update the Website with Input Material provided by the Client from time to time.
(11.1) Following the Acceptance Date, the Agreement may be terminated by the Client giving to the Company one month's prior written notice. If notice to terminate is given by the Client the Client accepts that the Company shall invoice all outstanding amounts for work completed in excess of that provided by the deposit.
(11.2) The Agreement may be terminated forthwith by the Company giving written notice to the Client if:
(11.2.1) the Client fails by the due date to pay any of the Charges set out in the Order Form or any other fees payable in accordance with the provisions of the Agreement;
(11.2.2) the Client commits any material breach of any terms of the Agreement or fails to perform any material obligations on its part under the Agreement;
(11.2.3) a voluntary agreement is approved, or an administration order is made, or a receiver, liquidator or administrative receiver is appointed over or in respect of any of the Client's assets or undertaking or a resolution or petition to wind up the Client is passed or presented (other than for the purpose of amalgamation or reconstruction) or if any circumstances arise which entitle a court or a creditor to appoint a receiver, liquidator or administrative receiver or to present a winding-up petition or make a winding-up order or the Client goes into administration.
(11.3) On termination of this Agreement (howsoever arising):
(11.3.1) the Company shall immediately cease hosting the Website;
(11.3.2) unless the parties agree otherwise, the Client shall no longer have a right to use the Works and shall cease using the same;
(11.3.3) save as expressly provided for in this Agreement, all licences granted by the Company under this Agreement shall terminate immediately and the Client shall not be entitled to a refund of any Charges paid by the Client to the Company.
(11.4) Any termination of this Agreement shall be without prejudice to any other right or remedies a party may be entitled to under this Agreement or at law and shall not affect the accrued rights, obligations or liabilities of either party nor the coming into or continuance in force of any provision of this Agreement which is expressly or by implication intended to come into force on or after such termination.
(12.1) The client acknowledges that the Company will register domain names on behalf of the Client in accordance with the Terms and Conditions of Nominet which may be found at www.nominet.org.uk/uk-domain-names/registering-uk-domain/legal-details/terms-and-conditions-domain-name-registration
(12.2) The Customer will invoice the Client for the renewal of domain names at least eight weeks prior to the renewal date. Any queries regarding domain names and their renewal will receive a response within two working days. Clients will receive a renewal reminder 30 days prior to renewal. We will cancel the domain registration if the Client fails to settle the account.
(13) The Client shall pay for the Work, including all the website development and related costs specified in the Client Agreement without any set-off, deduction or any other form of withholding. The website development fee and related expenses are to be paid by a non-refundable deposit upon execution of the Agreement and the balance upon final approval by the Client. The annual hosting fee is payable to the Company one month in advance of the first month when hosting begins and annually thereafter. All sums due and paid to the Company under this Agreement in a relevant year shall be the "Charges" for that year.
(14.1) The Client irrevocably agrees and acknowledges that the Company IPR will at all times during the continuance and following the termination of the Agreement vest absolutely in the Company and that the Client shall not be permitted to use such Company IPR otherwise than pursuant to the express terms and conditions of Condition 11.2.
(14.2) The Company grants to the Client a non-exclusive, non-transferable license to use the Work for the Client's own business purposes only during the period commencing on the Acceptance Date and ending on the date that the Agreement is terminated pursuant to Condition 11.
(14.3) The Company will indemnify and hold harmless the Client on an indemnity basis only against any damages (including reasonable costs) that may be awarded or payable by the Client to any third party in respect of any claim or action that the Client's use of the Company IPR in accordance with the terms of this Agreement infringes the Intellectual Property Rights of any third party (an "Intellectual Property Infringement") provided that the Client (a) gives notice to the Company of any suspected Intellectual Property Infringement forthwith upon becoming aware of the same; (b) gives the Company the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the Company; and (c) acts in accordance with the reasonable instructions of the Company and gives to the Company such assistance, as it shall reasonably require in respect of the conduct of the said defence including without prejudice to the generality of the foregoing the filing of all pleadings and other court process and the provision of all relevant documents. The Company shall reimburse the Client its reasonable costs incurred in complying with the provisions of this Condition.
(14.4) The Company shall have no liability to the Client in respect of an Intellectual Property Infringement if the same results from any breach of the Client's obligations under this Agreement.
(14.5) In the event of an Intellectual Property Infringement the Company shall be entitled at its own expense and option either to (a) procure the right for the Client to continue using the Website; or (b) make such alterations, modifications, adjustments or substitutions to the Website so that it becomes non-infringing without incurring a material diminution in performance or functionality from the Specification.
(15.1) Save in the circumstances set out in Condition 14.3 and subject to Condition 14.4, the Client agrees to hold the Company and its agents harmless from and against any and all claims and damages, expenses or liability that arises from or in connection with the Website, content or activities, including but not limited to, any attorney fees incurred by the Company. The Client, if so instructed by the Company, at its own cost and expense, shall defend any and all actions, which may be brought against the Company. The Client's failure to perform under the terms of this Condition shall be deemed a waiver of any and all claims, demands for remedies, or causes of action, including specific performance, which the Client might otherwise have against the Company and its agents.
(15.2) The Client acknowledges and accepts that websites in general are not error, fault or bug free nor secure from persons wishing to misuse, tamper with, erase, alter or in any other way corrupt websites, and the data, information and records they display, retrieve, collate, transfer or disseminate and the Client agrees with the Company that the Company shall have no liability to anyone for any such occurrences arising in respect of or in relation to the Website and the Client shall indemnify and keep the Company indemnified on a full indemnity basis from and against all liabilities of the Company arising from such occurrences and arising in respect of or in relation to the Website.
(15.3) Subject to Condition 14.2, the Company warrants that it will perform all services to be provided to the Client pursuant to the Agreement with reasonable care and skill and in accordance with generally-accepted industry standards.
(15.4) The Client acknowledges and accepts that computers need routine maintenance and sometimes break down, that the Company cannot control the timing or volume of attempts to access the Website, and that the Website is provided on an "as-is, as-available" basis. As a result, the Company does not guarantee to anyone that the Client or any third parties will be able to access the Website or the internet at any particular time and the Client agrees that the Company shall have no liability to anyone if any such persons are not able to access the Website or the internet for any given period of time.
(15.5) Subject to the foregoing, all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise, in respect of the provision of the Website, the Works and the provision of all other services pursuant to the terms of the Agreement are hereby excluded to the fullest extent permitted by law.
(16.1) Notwithstanding anything to the contrary in these Conditions, the Company's liability to the Client for death or injury resulting from its own or its employees', agents' or sub-contractors' negligence shall not be limited.
(16.2) Subject to Conditions 15.1 and 15.3, the total liability of the Company under this Agreement (including any loss or damage to the Client's tangible property) shall be limited in any year to damages of an amount equal to 125% of the amount of the Charges that have been paid to the Company in the immediately preceding year or in respect of the first year, an amount equal to 125% of the Charges paid in that year.
(16.3) Subject to Condition 15.1, the Company shall not be liable to the Client in respect of any losses or damage which may be suffered by the Client (or any person claiming through or under the Client), whether the same are suffered directly or indirectly or are immediate or consequential and whether the same arise in contract tort (including negligence) or otherwise howsoever, which fall within any of the following categories: (a) special damage even though the Company was aware of the circumstances in which such special damage could arise; (b) loss of profits; (c) loss of turnover; (d) loss of anticipated savings; (e) loss of business opportunity; (f) loss of goodwill; (g) loss of data; provided that this Condition 15.3 shall not prevent claims for loss of or damage to the Client's tangible property that fall within the provisions of Condition 15.2 or any other claim for direct financial loss that are not excluded by Conditions 15.3 (a) to (g) inclusive.
(16.4) Without prejudice to the generality of any other term of these Conditions and subject to Condition 15.2, the Company shall not be liable for any damage or losses or for any additional damage or losses suffered or incurred by the Client where the same arise from the failure of the Client to observe and perform its obligations under this Agreement, use the Works or Website in accordance with the Company's instructions and best data processing practices.
(16.5) The Client declares and acknowledges that it has considered the provisions of this Condition 15 in detail including but without limitation each of the limitations on liability contained in Condition 15.3 and considers them reasonable in the circumstances having taken into account among other factors the subject matter of this Agreement and having obtained or had the opportunity to obtain independent legal advice on the same.
(16.6) The Company shall not be liable for any error, omission, defect or deficiency in any service, which results from the Client's failure to provide complete, accurate and current information to the Company. Under no circumstances shall the Company and its agents be liable to the Client for breach of the Agreement due to circumstances beyond the Company's reasonable control, including without limitation, any downtime regarding computer servers or interruption of internet service providers.
(17.1) Each of the parties undertakes to the other during the term of this Agreement and following termination (howsoever arising) to keep confidential, subject to the provisions of this Condition 16, all information (written or oral) that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this Agreement (including the terms of this Agreement) and in relation to information provided by the Company all confidential information in or relating to the Website (excluding Input Material) or Company IPR save that which is (a) trivial or obvious; (b) already in its possession other than as a result of a breach of this Condition and is not subject to an obligation of confidentiality; (c) in the public domain other than as a result of a breach of this Condition.
(17.2) Either party may disclose any confidential information to (a) its auditors and professional advisors; (b) comply with any law, regulation or government request (including the rules of any applicable stock exchange and HM Revenue and Customs); and (c) its employees, agents, sub-contractors and consultants who have a need to know the same for the purpose of this Agreement only, provided that the Party disclosing the confidential information under this Condition 17.2 uses its reasonable endeavours to procure that the person to whom confidential information is disclosed maintains as confidential the confidential information and does not use the same except for the purposes for which the disclosure is made.
(18.1) Each of the Parties shall in the course of performing its obligations under this Agreement comply with all applicable laws including the Data Protection Act 1998 and Bribery Act 2010.
(18.2) The Client authorises the Company to access and make copies of the Client's data for the purposes of performing its obligations under this Agreement and to the extent that the Company's performance of its obligations under this Agreement involves the processing of Personal Data (as defined in the Data Protection Act 1998) on behalf of the Client, the Client warrants that the individuals to whom such Personal Data relates consent to their Personal Data being transferred to and processed by the Company to the extent required to enable the Company to perform its obligations under this Agreement.
(19) The Client agrees that the Company may place a First Internet design credit on the home page of the Website
(20) This Agreement and any document referred to in it contains the entire understanding between the parties in relation to its subject matter and supersedes all (if any) subsisting agreements, arrangements, understandings, negotiations, discussions or correspondence (written or oral, express or implied) relating to the same. The Client acknowledges that in entering into this Agreement it has not relied on any warranty, representation or undertaking (whether made innocently or negligently) which is not contained in or specifically incorporated into this Agreement. The Client agrees and acknowledges that its only remedy in respect of those representations, statement, assurances or warranties set out in this Agreement will be for breach of contract, in accordance with the terms of this Agreement, provided always that nothing in this Condition 19 shall exclude or the limit of liability of the Company for any fraudulent misrepresentation or warranty fraudulently given and upon which the Client can prove it has placed reliance.
(21) Complaints. In the first instance any complaint should be made to the Client Services Director. If the Client Services Director is unable to provide satisfaction of the complaint it will be passed to the Managing Director for resolution.
(22) Abuse. In the event of any abuse this must be sent to firstname.lastname@example.org
(23) Service Commitment. We undertake to respond to any customer query or complaint within three working days.
(24) No right or remedy conferred upon or reserved by the Company by this Agreement is intended, and shall not be deemed, to be exclusive of any other right or remedy provided or permitted herein, by law or by equity, but each right or remedy shall be cumulative of every other right or remedy.
(25) No variation of this Agreement shall be effective unless it is in writing and signed by the Company.
(26) A failure, delay or neglect by the Company to exercise any right or remedy or enforce any of the provisions of this Agreement shall not be construed or deemed to be a waiver or continuing waiver of the Company's rights or remedies, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(27) If any of the provisions of this Agreement shall be declared invalid or unenforceable in whole or in part by any competent court or other authority whose decisions shall have the force of law binding on the Parties, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions shall not be affected. If the invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal valid and enforceable.
(28.1) A notice given under this Agreement shall be in writing and sent for the attention of the person, and to the address, fax number or email address given in the Client Agreement (or such other person, address, fax number or email address as the receiving party may have notified to the other).
(28.2) To prove service, it is sufficient to prove that the notice was transmitted by fax to the fax number or email address of the relevant party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
(29) The Client shall not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Company.
First Internet, Terms and Conditions 26/03/2014