The Valen Digital Terms And Conditions
This page (together with the section/documents referred to on it) tells you the terms and conditions on which we (“Supplier”) supply our services (“Services”) described on our website www.valendigital.co.uk to you (“Customer”).
GENERAL TERMS & CONDITIONSThis section was last updated: 12th November 2016
This page (together with the section/documents referred to on it) tells you the terms and conditions on which we (“Supplier”) supply our services (“Services”) described on our website www.valendigital.co.uk to you (“Customer”).
Please read these terms and conditions carefully before ordering any Services. You should understand that by ordering any of our Services, you agree to be bound by these terms and conditions. Please refer to our full terms and conditions section below.
Please read through these terms and conditions carefully and print a copy for future reference.
Please understand that if you refuse to accept these terms and conditions, you will not be able to order any Services.Payments
The total amount for the work and any deposits required will be detailed in an accompanying Web Design Agreement Contract with all new projects. Payment of the initial deposit payment is required before work will commence. All invoices must be paid in full within 7 days of the invoice being received. Valen Digital reserves the right to charge interest at the rate equivalent to that set out for the purposes of S6 of the Late Payment of Commercial Debts (Interest) Act 1998, calculated on a daily basis from the date of invoice until payment.Due Dates
Valen Digital agrees to deliver samples of design on dates as agreed upon in the proposal and will make every effort to meet agreed upon due dates. The Client should be aware that failure to submit required information, text, images or materials may cause delays in the production.Quotations
The price quoted to the client is for the work agreed on the quotation only. Should the client decide that changes are required after work on the website commences, then we will accept these changes with the provision that additional charges may have to be negotiated.Domain Name Registration Charges
All third party costs arising from the registration of a domain name shall be met by the Client unless otherwise stated in writing. If a domain name is required it must be paid for, in full, before Valen Digital will place the order on the Client’s behalf.Hosting
Valen Digital can arrange hosting for your website, details of which will be outlined in a proposal we will send you. Clients can host their own website (or use a third party) if they prefer but any maintenance or work carried out on the website, if a third party host is used, may incur additional charges calculated on an hourly basis.Maintenance Policy
Valen Digital operates a “free minor update” policy that is valid for clients that have had their websites designed by, and hosted by Valen Digital or Umbrella Host. Valen Digital reserves the right to refuse or cancel any such “free minor update” arrangements, without notice at any time. This policy is entirely at Valen Digital’s discretion and includes minor updates to text, images and the general layout of a web page. Any major changes or maintenance required on the Client’s website will be charged by the hour with the Client informed of this before work commences. Work will commence on receipt of the Client’s agreement to carry out such maintenance.Search Engines
Valen Digital is not responsible for the client’s on-going web site promotion. Should the client require the site to be promoted on an ongoing basis a separate contract must be agreed in writing beforehand. The order in which websites are ranked in the natural search results is controlled by the search engines and we have no direct control over this. While we make every effort to optimise your site for this we are unable to make any guarantees about the success of any search engine promotion activity.Fees & Additional Services
Changes in client input or direction or excessive changes will be charged at a rate of £95.00 per hour. Any work the Client wishes Valen Digital to create, which is not specified in the Description section of the separate Contract Agreement, or in a separate Proposal will be considered an additional service. Such Work may require a separate Agreement and payment separate from that specified in this Agreement.Failure to Provide Website
For content to remain efficient we must ensure that work we have programmed is carried out at the scheduled time. On occasions we may have to reject other work and enquiries to ensure that your work is completed at the time arranged. This is why we ask that you provide all the required information in advance. On any occasion where we cannot progress your website because you have not provided the required information when you have agreed to do so, and we are delayed as result, we reserve the right to impose a surcharge to cover the additional time required. Valen Digital will invoice the client if feedback is not received to progress the client’s project after 14 days of sending concept design(s) for approval.Clients Copyright Responsibilities
In situations where the client provides images, text, animations or any other content for their website they are legally responsible for ensuring that this material does not infringe any copyright laws. If any stock photographs are used the website owner is legally responsible for ensuring that permission to use the images has been granted.E-commerce Responsibilities
Valen Digital design websites in accordance with the client’s specifications and it is the client’s responsibility to ensure that the website and its content comply with standing regulations. We cannot accept responsibility for any failure to comply with regulations related to accessibility, selling online or those related to a specific business or trade.Confidentiality
The Client and Consultant may disclose confidential information one to the other to facilitate work under this Agreement. Such information shall be so identified in writing at the time of its transmittal, and shall be safeguarded and not disclosed to third parties by the receiving party. Confidential information shall not include information that:
- 1. is already known to the party to which it is disclosed;
- 2. is or becomes part of the public domain without breach of this Agreement;
- 3. is obtained from third parties, which have no obligations to keep confidential to the parties to this Agreement
Client agrees to reimburse Consultant for any of the following expenses necessary in completion of the Work (e.g. Fonts, Messengers, Proofs, Props, Research, Shipping, Software, Stock photography, Travel, Telephone Consultation). The Client will be notified of any such charges beforehand to confirm if they wishes to proceed. Additional Agreements, separate to this one, may be required in such instances. Travelling time to and from customer premises is not generally included in our estimate. Valen Digital reserves the right to make a charge for travelling time at our normal consultancy rates.Assignment of Work
Valen Digital reserves the right to assign other designers to the Work to ensure quality and on-time completion. The Client will be notified before any such assignments commence.Reservation of Rights
All rights not expressly granted hereunder are reserved to Consultant, including but not limited to all rights in sketches, comps, or other preliminary materials.Permissions and Releases
The Client agrees to indemnify and hold harmless Consultant against any and all claims, costs, and expenses, including solicitor’s fees, due to materials included in the Work at the request of the Client for which no copyright permission or previous release was requested or uses which exceed the uses allowed pursuant to a permission or release.Publication
The Client may publish or disclose information regarding the Work and shall acknowledge the support of Consultant in all such publications. The Client will not use the name of Consultant, in any advertising or publicity without the prior written approval from the Consultant.Copyright Notice
Copyright is in Consultant’s name. Upon completion of Work, the copyright will only be released to the Client upon the Consultant’s signing of the Release of Copyright.Cancellation
Should the client wish to cancel at any point during the process they shall remain liable for the work that has taken place and shall be invoiced accordingly.
FULL TERMS & CONDITIONSThis section was last updated: 1st December 2016 1.Interpretation
1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).
Content: if included in the Services to be provided in accordance with the Order Form, the Content written for the Customer’s website on request by the Customer;
Contract: the Customer’s purchase order and the Supplier’s acceptance of it, or the Customer’s acceptance of a quotation for Services by the Supplier under condition 2.2;
Customer: the person, firm or company who purchases Services from the Supplier;
Customer’s Pre-existing Materials: all Documents, information and materials provided by the Customer which existed prior to the commencement of the contract including data, graphic logos and files;
Deliverables: all Documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts);
Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form;
Hosting Management Charge: the management charge payable in respect of the Hosting Services, where Hosting Services are provided by the Supplier;
In-put Material: all Documents, information and materials provided by the Customer relating to the Services including (without limitation):
- the Supplier’s website’s file transfer protocol (FTP) host name, user name and password (FTP Details);
- a list of key phrases to be utilised in the search engine option;
- computer programs, data, reports and specifications;
- any text in electronic format and any graphics in high quality print suitable for scanning or electronically in .gif, .jpeg. .png or .tiff format;
- any other details required in the Order Form;
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, 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 Form: the Supplier’s order form to purchase the Services;
Pre-existing Materials: all Documents, information and materials provided by the Supplier relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports, graphic logos and specifications;
Project Plan: a plan detailing the Services to be provided to the Customer including:
- (a) where Content is to be provided, the number and frequency with which the articles should be provide and the subject or those articles;
- (b) where website design and development services are to be provided, the agreed design specification; and
- (c) where search engine optimisation services are to be provided the key phrases to be used in the provision of the services attached to the Order Form; the Supplier’s website’s file transfer protocol (FTP) host name, user name and password (FTP Details);
- computer programs, data, reports and specifications;
- any text in electronic format and any graphics in high quality print suitable for scanning or electronically in .gif, .jpeg. .png or .tiff format;
- and any other details required in the Order Form;
- Services: the services to be provided by the Supplier under the Contract as set out in the Order Form;
Supplier: www.valendigital.co.uk is a site operated by Umbrella Interactive Ltd a company incorporated in England and Wales with registration number 0160269 whose registered office is at 15 Water St, Rochdale, Greater Manchester, Lancashire OL16 1TL. Our VAT number is 128 9325 08;
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Headings in these conditions shall not affect their interpretation.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The schedules form part of the Contract.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.6 A reference to writing or written includes faxes but not e-mail.
1.7 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.8 References to conditions and schedules are to the conditions and schedules of the Contract.2 Application of Conditions
2.1 These Conditions shall:
2.1.1 apply to and be incorporated into the Contract; and
2.1.2 prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, brief or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
2.2 The Customer’s purchase order, or the Customer’s acceptance of a quotation for Services by the Supplier, constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than:
2.2.1 by a written acknowledgement issued and executed by the Supplier; or
2.2.2 (if earlier) by the Supplier starting to provide the Services, when a contract for the supply and purchase of the Services on these Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
2.3 Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of  days from its date, provided that the Supplier has not previously withdrawn it.
2.4 If the Customer is contracting as a consumer, it shall benefit from a cooling off period and may cancel a Contract at any time within seven working days, beginning on the Commencement Date by notice in writing to the Supplier.. In this case, the Customer will receive a full refund of the price paid for the Services.3. Commencement and Duration
3.1 The Services supplied under the Contract shall be provided by the Supplier to the Customer from the date specified in the Order Form (Commencement Date).
3.2 Subject to condition 13, or unless specifically stated otherwise on the contract, the Services supplied under the Contract shall continue to be supplied for a period of 1 year (Initial Term) During the final months of the Initial Term the Supplier shall contact the Customer to inform the Customer that the contract is due to expire and to negotiate the renewal of the contract. The Supplier shall continue to provide the Services and the Customer shall continue to pay the Price (at the same monthly amount) until such time as the Supplier and the Customer agree the terms of the renewal of the contract or 30 days after the expiry of the Initial Term (whichever is earlier).4. Supplier’s Obligations
4.1 The Supplier shall use reasonable endeavours to deliver the Services and the Deliverables to the Customer, in accordance in all material respects with the Order Form.
4.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in the Order Form.5 It is acknowledged that the Supplier has given no warranties, representations or guarantees regarding the outcome or predicted results produced by the Services.
5.1 It is further acknowledged that the Services will be provided on a non-exclusive basis, in that the Supplier shall be free to supply services the same as or similar to the Services to businesses in the same and competing industry sectors as the Customer.6 Customer’s Obligations
6.1 The Customer shall:
6.2 co-operate with the Supplier in all matters relating to the Services;
6.3 provide to the Supplier, in a timely manner, such In-put Material and other information as the Supplier may require and ensure that it is accurate in all material respects;
6.4 obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services and the use of In-put Material in all cases before the date on which the Services are to start;
6.4.1 consent to and take such steps as are reasonably necessary to enable the Supplier to advertise the Customer’s website on its or any of its partner’s websites; and
6.4.2 add or produce the addition of unique content onto its website on a regular basis.
6.5 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay. In particular, it is acknowledged that the certain parts of the Services e.g. on page work, cannot be provided until the Supplier has received the FTP Details.
6.6 In the event that FTP access is not available the Supplier may agree to provide the Services subject to the following provisions:
6.6.1 The Customer will provide a copy of its website’s files and any databases that the website requires to run to the Supplier at its postal address at that time via a form of suitable media; and
6.6.2 the Supplier may provide either a report or static copies with the optimisation work annotated. This work shall be implemented by the Customer’s own design team / in house programmers. The Customer shall be responsible for any additional costs incurred in the implementation of the Supplier’s suggestions and recommendations; and
6.6.3 the Supplier does not warrant and accepts no liability for the implementation of its suggestions or recommendations.
6.7 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
6.8 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of 6 months after the termination of the Contract, solicit or entice away from the Supplier or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.
6.9 In order to improve the provision of the Service, the Company’s website URL may be linked via the Supplier’s URL. The Customer must notify the Supplier in writing if the Customer does not consent to this linking.
6.10 The Customer acknowledges that the provision of the Services is subject to any changes in search engine algorithms. In order to respond to any such changes the Supplier may re-optimise the Customer’s website.
6.11 The Customer shall not contact the Supplier’s network websites or partners.
6.12 The Customer shall inform the supplier of any changes to its website that may affect the Supplier’s ability to perform the Services, including, but not limited to, the deviation, alteration or addition of a URL address, URL redirect or the content of the website.7. Charges and Payment
7.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the charges as set out in the Order Form, which shall set out a fixed price for the provision of the Services for the Initial Term which shall be apportioned and paid on a monthly basis.
7.2 Any fixed price contained in the Order Form excludes:
7.2.1 VAT, which the Supplier shall add to its invoices at the appropriate rate;
7.2.2 any additional sums which are agreed between the parties for the variation to this Contract and the provisions of the services; and
7.2.3 any fees incurred in the provision of additional copies of web analytic reports prepared in the relation to the Services, which shall be charged at a fee of £100 plus VAT per copy and any increased fees arising from any variation of the terms of the Contract.
7.3 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
7.3.1 charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Royal Bank of Scotland Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
7.3.2 charge an administration charge of £25.00 + VAT for each late payment
7.3.3 following the failure by the Customer to make 2 consecutive payments, suspend all Services until payment of the sums referred to in clause 13.3.1 have been made in full. The Customer hereby acknowledges that should the Supplier exercise its rights pursuant to this clause 7.3.3, the Supplier shall not be held liable for any negative impact.
7.4 Time for payment shall be of the essence of the Contract.
7.5 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.8 Hosting
8.1 This clause applies where Hosting Services are included in the Services to be provided by the Supplier and not otherwise.
8.2 Standard shared hosting is provided from a third-party company with no guarantee of the level of uptime from the Supplier.
8.3 It is the Customer’s responsibility to maintain its own backup processes and to regularly make copies of all information.
8.4 The Customer’s hosting account has predefined limits, set out within the invoice. It is liable for any excess charges (i.e. data transfer/disk space) incurred as a result of the account exceeding these service limits. For a full list of any over usage charges please visit https://www.umbrella-host.co.uk
8.5 The Supplier’s server service level agreement provides that the connection between the server as provided through the Supplier will be accessible on at least a 98% basis, 24 hours a day excluding any planned disconnection. Inaccessibility shall be measured from the documented time that the Supplier receives an e-mail or fax advising of the connection to the server being unavailable or if our internal systems that monitor the server are triggered. Credit against the Hosting Management Charge will only be given if a Customer makes a formal claim in writing to the Supplier within 10 working days of the incident being rectified.9 Intellectual Property Rights
9.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Supplier. Subject to condition 8.2 and payment of the Price, the Supplier licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables, the Content and the Services. This shall automatically terminate upon termination of the Contract, unless upon such termination the Price has been paid in full.
9.2 The Customer acknowledges that, where the Supplier does not own any Pre-existing Materials, the Customer’s use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
9.3 As between the Customer and the Supplier the Customer’s Pre-existing Materials shall be owned by the Customer. The Customer licenses all such rights to the Supplier free of charge on a non-exclusive worldwide basis to such an extent as is necessary to enable the Supplier to provide the Services.
9.4 The Customer undertakes that they have all necessary rights and/or consents necessary to permit the transfer of the intellectual property and data provided to the Supplier hereunder (including for the avoidance of doubt the In-put Material and the Customer’s Pre-existing Material), the Supplier’s subsequent use of such data and intellectual property in connection with the provision of the Services as envisaged hereunder and shall indemnify the Supplier on demand against any action, award, claim, cost, expense, fine, liability, loss or penalty incurred or suffered by the Supplier as a result of the Customer not having such rights and/or consents.10. Confidentiality and the Supplier’s Property
10.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain.
10.2 The Customer may disclose such information:
10.2.1 to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract; and
10.2.2 as may be required by law, court order or any governmental or regulatory authority.
10.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 10.
10.4 The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
10.5 Save as set out in condition 9.4, all materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer (including Pre-existing Materials) shall, at all times, be and remain as between the Supplier and the Customer the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.11. Limitation of Liability – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
11.1 This condition 11 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
11.1.1 any breach of the Contract;
11.1.2 any use made by the Customer of the Services, the Deliverables or any part of them; and
11.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
11.2 Save as set out herein, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.3 If alterations are made by the Customer or a third party to the Customer’s site, search engine placements may be affected and the Supplier accepts no responsibility for any variations in the search engine placements following any alteration to the Customer’s website. In these circumstances, the Supplier reserves the right to charge a further fee for any costs incurred by the Supplier in providing the Services.
11.4 The Supplier is not responsible for the content or advertisements on any of the Supplier’s network of sites or partner sites. If the Customer is unhappy with a website that contains the Customer’s advertisement please notify the Supplier in writing and request the advertisement be removed.
11.5 The Customer shall have an opportunity to review the appearance and content of the website in accordance with the Project Plan and unless the Customer responds to the contrary within 14 days shall be deemed to have approved this. The Supplier shall have no liability for any errors in respect of content or design which have been passed to the Customer for approval.
11.6 Advice and recommendations provided by the Supplier are provided on the basis of prevailing best practice as at the time the advice is given. The Supplier shall have no liability to the Customer to the extent search engine providers alter their practices (including algorithms) which may affect the advice provided and the methodology adopted by the Supplier in its delivery of the Services.
11.7 Nothing in these Conditions limits or excludes the liability of the Supplier:
11.7.1 for death or personal injury resulting from negligence; or
11.7.2 for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or
11.7.3 for any liability incurred by the Customer as a result of any breach by the Supplier of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
11.8 Subject to condition 11.2 and condition 11.7 the Supplier’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 price paid for the Services.12. Data Protection
12.1 The Customer consents to the Supplier processing data relating to the Customer for legal, administrative or management purposes, including the submission of the details of the Customer’s name, address and payment record to a credit reference agency.
12.2 The Customer also consents to the Supplier processing data relating to the Customer to assist with and in connection with the provision of the Services, including the submission of the Customer details for directory submissions which shall include the processing of personal data relating to the Customer’s employees/representatives as is required for the directory entry submission. In executing the Order Form the representative of the Customer hereby consents to the use of their name as the point of reference for such submissions. The use of the data submitted for the purposes of the directory submissions shall be governed by the policies of the directories and the Supplier shall have no liability for the subsequent use of such data.
12.3 The Supplier may use the personal data of the Customer from time to time to contact them with information about additional goods or services which may be of interest to the Customer. If the Customer does not want the Supplier to contact them for this purpose they should notify the Supplier in writing to the address set out in condition 1.1 or such other address as the Supplier notifies the Customer of from time to time.13. Termination
13.1 Without prejudice to any other rights or remedies which the Supplier may have, the Supplier may terminate the Contract without liability to the Customer immediately on giving notice to the Customer if:
13.1.1 the Customer fails to make 2 consecutive payments due under the Contract on the due date for payment; or
13.1.2 the Customer commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
13.1.3 the Customer repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
13.1.4 the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
13.1.5 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
13.1.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the Customer;
13.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; or
13.1.8 a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; or
13.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the Customer; or
13.1.10 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
13.1.11 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 13.1.4 to condition 13.1.10 (inclusive); or
13.1.12 the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
13.1.13 there is a change of control of the Customer (as defined in section 574 of the Capital Allowances Act 2001).
13.2 If the Customer is found to be using techniques which, in its absolute discretion, the Supplier determines unethical (including but not limited to as cloaking, hidden text, keyword stuffing) and if the unethical techniques are not removed within 7 days following notification by the Supplier, the Supplier may terminate the Contract with immediate effect by giving written notice. The Company shall accept no responsibility for the effect of the client using unethical techniques.
13.3 On termination of the Contract for any reason:
13.3.1 the Customer shall (subject to clause S13.3.2) 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 may submit an invoice, which shall be payable immediately on receipt;
13.3.2 the Customer shall be entitled to deduct from the sums referred to in clause 13.3.1
- (i) any sum referable to third party disbursements yet to be incurred for products or services that may be cancelled at no liability and
- (ii) in respect of sums that would not otherwise be due for payment within the 60 days of actual receipt of payment, a sum equal to 2% of such sums on account of accelerated receipt;
13.3.3 the Customer shall return all of the Supplier’s Equipment, Pre-existing Materials and Deliverables. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping;
13.3.4 the Supplier shall cease to provide the Services and all links to the Customers website shall be disabled;
13.3.5 the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected; and
13.3.6 the Customer shall within 14 days, remove all references to the Supplier from its website and from within the source code.
13.4 In certain circumstances the Supplier may in its absolute discretion provide to Customer, free of charge, a blog installation subject to the Customer acquiring a minimum number of articles or contracting with the Supplier for the provision of Content for a minimum term (as set out in the Order Form). Where the Contract is terminated early for whatever reason and such termination shall cause the Customer to breach its minimum purchase requirements, the Customer shall pay an additional fee for the provision the blog installation equal to £1,500 (plus VAT where the installation uses PHP) or £2,000 (plus VAT, where the installation used ASP).
13.5 On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect:
13.5.1 condition 9 (Intellectual Property Rights);
13.5.2 condition 10 (Confidentiality and Supplier’s Property);
13.5.3 condition 11 (Limitation of Liability);
13.5.4 condition 13 (Termination); and
13.5.5 condition 23 (Governing Law and Jurisdiction).14. Force Majeure
14.1 The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) 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.15. Variation
15.1 The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
15.2 Subject to condition 15.1, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.16. Waiver
16.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. 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.
16.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.17. Severance
17.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
17.2 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.18. Entire Agreement
18.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
18.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
18.3 Nothing in this condition shall limit or exclude any liability for fraud.19. Assignment
19.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.
19.2 The Supplier may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
19.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.20. No Partnership or Agency
20.1 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.21. Rights of Third Parties
21.1 A person who is not a party to the Contract shall not have any rights under or in connection with it.22. Notices
22.1 Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party.
22.2 Any notice shall be deemed to have been duly received if delivered personally, when left at the address set out in the Order Form or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
22.3 This condition 22 shall not apply to the service of any in any proceedings or other documents in any legal action.
22.4 A notice required to be given under the Contract shall not be validly served if sent by e-mail.23. Governing Law and Jurisdiction
23.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
23.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).