Text Terms & Conditions of business
GENERAL SECTION
The following terms are of general application for all Services:
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms the following mean unless inconsistent with the context:
"Acknowledgement" written confirmation by the Supplier of supply details using its standard order form or in such other form as the Supplier thinks fit;
"Agreement" the contract to supply the Services;
"Agreement Date" the date the Agreement is made referred to at clause 3.4;
"Bank" HSBC Bank Plc;
"business day" any day except a Saturday or Sunday or a bank or public holiday in England;
"Charges" the charges for the Services (excluding items in clause 5.3.2);
"Change of Control" the Client ceasing to be under the control of persons who are members at the Agreement Date;
"Client", "You",
"Your" the person who placed the Order or (if different) the person stated in the Acknowledgement to whom we agree to supply;
"Client Website" the new website which is to be designed and developed as part of the Services specifically for the Client or (if different) the Client's website in respect of which the Services are to be supplied and identified by a URL which includes the Domain Name or such other URL as the Client may confirm in writing;
"Confidential Information" all Documents and other information relating to the business and affairs of a party including all technical, commercial or financial information concerning its business, website(s), system(s) and software and/or its present or future products and/or services (including future projects and plans) and all other information which is a trade secret or is otherwise confidential and/or proprietary information of the party (including information held for a third party in confidence);
"Control" has the same meaning as that given in section 416 of the Income and Corporation Taxes Act 1988;
"Deliverables" all deliverables (including any Documents) the Supplier agrees to supply to the Client which are specific to the Client including (if applicable) Deliverables which form part of the Client Website or for use in connection with the Client Website;
"Document" includes, in addition to a written document, any map, plan, graph, drawing or photograph, any film, negative, tape or other device which records or has embodied in it audio and/or visual content and any disc, tape or other device recording or embodying any other data or information;
"Domain Name" the domain name which the Client has confirmed in writing;
"Force Majeure" any events or circumstances beyond the reasonable control of a party including strikes, lock-outs or other industrial disputes (involving the workforce of any party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, accident, fire, flood or storm;
"Insolvency Event" the Client becomes insolvent, or proposes or makes an arrangement or composition with creditors, or has a receiver or manager appointed over any of its assets or circumstances arise which entitle a court or a creditor to appoint such a receiver or manager or any other person takes possession of or sells any of its assets, or is subject to a petition or order for bankruptcy, or passes a resolution or documents are filed with a court or other steps are taken to put into (including notice of intent given to appoint an administrator) or is subject to an order for administration, liquidation or dissolution (save for an amalgamation or reconstruction on terms acceptable to the Supplier), or ceases or threatens to cease to carry on all or a material part of its business (except in an amalgamation or reconstruction on terms acceptable to the Supplier as above), or has distress or execution on its property or is subject to any event analogous to the foregoing in any applicable jurisdiction;
"IPR" all intellectual and industrial property rights of whatever nature including patents, trade marks (whether or not registered), business and trade names, product and brand names, domain names, rights to or in computer software, know-how and show how, inventions, copyright and rights in the nature of copyright, designs (whether or not registered) and design rights; rights in goodwill or to sue for passing off, unfair competition rights, rights in Confidential Information and other information, database rights, web and online rights, satellite and television rights, merchandising rights and other commercial monopoly rights and including all applications (and rights to apply for), and renewals, extensions and revivals of, all intellectual and industrial property rights of whatever nature and all similar or equivalent rights or registration or other forms of protection and which subsist or will subsist anywhere in the world;
"Launch Date" the date by which a new Client Website is intended by the parties to be fully functional and ready for access by members of the public being a date agreed in writing;
"Order" the order or requisition (including a tender) for the Services;
"Premises" the premises at or from which the Services will be supplied;
"Services" all services the Supplier agrees to supply to the Client (including (if applicable) website design and development, search engine optimisation and marketing services), and obligations to be performed by the Supplier in respect of them, and which services are stated in the Acknowledgement and (unless the context otherwise admits) includes Deliverables and goods supplied as part of or in connection with supply and/or the product of such services;
"Software" all software the Supplier agrees to supply or make available to the Client connected to supply of the Services, including (if applicable) our content management software ("the CMS Software") supplied or made available to operate a new Client Website in agreed terms;
"Specification" the detailed written specification of the Services to be supplied;
"Supplier",
"We",
"Us",
"Our"
"Text" a division of UKFast. Net Limited (No. 3845616) of 28th Floor, City Tower, Piccadilly Plaza, Manchester M1 4BD;
"System" all hardware, cabling, peripherals and other equipment (including any server) the Supplier agrees to supply or make available to the Client connected to supply of the Services;
"Terms" these standard terms and any special terms set out or referred to in the Acknowledgement or otherwise agreed in writing;
"VAT" value added tax or any similar sales tax; and
"Website" the Supplier's website identified by www.text.co.uk or such other URL as the Supplier may confirm in writing.
1.2 Headings are for convenience and do not affect interpretation of the Agreement.
1.3 Words and phrases "including", "includes" and "in particular" do not limit preceding words nor shall be interpreted to limit application by reference to words that follow.
1.4 Reference to a clause or sub-clause is to a clause or sub-clause in these Terms unless otherwise confirmed in writing by us.
1.5 In the event of an express conflict between these standard terms and any special terms the special terms prevail and (unless otherwise stated to the contrary in the SPECIFIC SECTION) in the event of an express conflict within the standard terms those in the SPECIFIC SECTION prevail in each case to the extent of conflict.
1.6 Reference to a statute or law is to it as it is in force for the time being taking account of any amendment, extension, consolidation or re-enactment and in the case of a statute includes subordinate legislation for the time being in force made under it.
1.7 Reference to a person includes any body corporate; unincorporated association; firm; body (statutory or otherwise) or authority (supreme, municipal, local or otherwise).
1.8 Reference to a party means the Supplier or the Client and (unless the context otherwise admits) their respective successors in title and permitted assignees and in the case of individuals includes their personal representatives and estates.
1.9 References to agreed or confirmed in writing means expressly agreed or confirmed in writing by the Supplier acting by an authorised person referred to in clause 7.1.
1.10 Reference to "personnel" of a party includes its officers, employees and (unless the context otherwise admits) self employed persons engaged by it. Reference to subject matter supplied or made available by a party includes (unless the context otherwise admits) on its behalf by its personnel, agents or contractors.
2. AGREEMENT TERMS
2.1 We shall supply the Services to you subject to these Terms, which govern the Agreement. All other warranties, conditions or terms whether express or implied by statute, common law, in equity or otherwise relating to the Agreement or the subject matter or performance or in any other respect, including any you seek to impose at any time and in any manner, are excluded to the fullest extent permitted by law.
2.2 Nothing in clause 2.1 or any term or provision of the Agreement shall exclude or restrict rights and remedies of either party which cannot be excluded or restricted by law including your statutory rights if dealing with us "as a consumer". If any term or provision conflicts with any such enforceable statutory right then the statutory right applies to the extent of the conflict subject to modification pursuant to clause 2.5.
2.3 A person who is not a party to the Agreement shall have no right under or arising out of The Contracts (Rights of Third Parties) Act 1999 to enforce any term or provision.
2.4 We may use agents and contractors for or connected to the supply of the whole or part of the Services or post supply, including any sub-contractors, as we think fit.
2.5 If any term or provision of the Agreement is held by a court or other competent authority to be invalid, void or otherwise unenforceable in whole or in part in England or in any other jurisdiction the validity and enforceability of the other terms and provisions and remainder of that term or provision shall not be affected in that jurisdiction and validity and enforceability in any other jurisdiction is unaffected. If the term or provision or part would be valid and enforceable in that jurisdiction if modified and is capable in law of being modified the parties shall negotiate modifications to the extent necessary to reflect the commercial intent of the parties and it shall apply in that jurisdiction subject to such modifications agreed in writing.
3. ORDER AND ACKNOWLEDGEMENT
3.1 You may place your Order with us orally or in writing or by use of our Website. You shall ensure your Order is complete and accurate in all respects and provide all information we reasonably request including written confirmation of an oral Order.
3.2 No Order is accepted nor quote binding save to the extent confirmed in writing in the Acknowledgement. A mere acknowledgement of receipt of your Order is not binding.
3.3 Services shall be supplied to a description and on the basis set out or referred to in the Acknowledgement and these Terms and (subject to that) our supply literature. The Acknowledgement applies in the event of an express conflict with other Terms. If we issue a revised Acknowledgment it replaces the original save as stated in it.
3.4 The Agreement is made on the date the Order is confirmed in whole or in part by the Acknowledgement or (if earlier) the date supply by us begins and you are deemed to have agreed and accepted the Terms which are incorporated into the Agreement.
3.5 You may not cancel an Order, and as a consequence the Agreement, once the Order is confirmed in whole or part by the Acknowledgement or (as the case may be) once supply by us begins unless either:
3.5.1 you are dealing with us "as a consumer" and have an enforceable statutory right of cancellation validly exercised by giving notice to us; or
3.5.2 (otherwise) cancellation is at our discretion and if we agree you shall pay us the cancellation fee stated in the Acknowledgement or otherwise agreed in writing and in default you agree to indemnify us in full against all actions, proceedings, losses (including loss of profit), damages, costs (including labour and materials used), expenses, claims, demands and liabilities brought or incurred before or arising directly or indirectly from cancellation.
3.6 We may cancel the Acknowledgement and our offer to supply the Services, and as a consequence the Agreement, at any time before supply begins by giving notice to you.
3.7 We may correct any error or omission in the Acknowledgement, our supply literature or any other Document or other information supplied or made available at any time to the fullest extent permitted by law and without liability for the error or omission.
3.8 Unless otherwise confirmed in writing any reference to our supply literature is to that current on the Agreement Date in respect of the Services and supply.
3.9 Save as stated in these Terms any variation of the Agreement must be agreed in writing.
3.10 We may vary the Acknowledgement or any other part of the Agreement:
3.10.1 to reflect changes to methods of supply to our clients generally;
3.10.2 to comply with legal requirements imposed by a court or other competent authority or with any other applicable law;
3.10.3 if in our reasonable opinion changes are required to avoid, mitigate or settle any third party claim or to comply with our insurers requirements;
3.10.4 if the changes are not in our reasonable opinion material or are made in circumstances mentioned at clause 4.2 or clause 5.2; or
3.10.5 in circumstances mentioned at clause 4.6 or any suspension of performance,
and which may include variation of any performance date or milestone as we think fit, and we shall so far as practicable confirm in writing the changes to you.
4. SUPPLY REQUIREMENTS
4.1 We shall supply the Services to the agreed Specification set out or referred to in the Acknowledgement. If the Specification is not in an agreed form on the Agreement Date the parties shall negotiate in good faith to agree the Specification as soon as practicable thereafter and which Specification must be agreed in writing. If the Services include the design and development of the Client Website, or the creation and/or supply of any Deliverable, to a design but the design (including any design plan (which for the Client Website includes any site map) or document) of the Client Website, or the Deliverable, is not in an agreed form on the Agreement Date the parties shall also negotiate in good faith to agree the design as soon as practicable thereafter and which design must be agreed in writing. Any change to the Services and supply requirements (including the Specification and/or any such design) and/or requirement for additional services must be agreed in writing.
4.2 If in our reasonable opinion the Services or any aspect of supply is unclear or may involve a supply of services which we have not agreed in writing to supply we may resolve such matter as we think fit by suspending performance and/or variation of the Agreement or otherwise, including on or after the Agreement Date confirming in writing the Premises and/or scope and method of supply and other supply particulars.
4.3 The Services shall be supplied to a service standard and service levels agreed in writing and (subject to that) using reasonable skill and care subject to all exceptions and qualifications set out or referred to in the Acknowledgement or agreed in writing. The parties shall carry out such acceptance test(s) in respect of the Services by such date(s) as agreed in writing.
4.4 We shall use reasonable endeavours to supply the Services at times or on dates or during periods set out or referred to in the Acknowledgement or otherwise agreed in writing subject to cancellation or termination or expiry of the Agreement as provided in these Terms. If the Services include design and development of the Client Website or the creation and/or supply of any Deliverable then such dates shall include such performance dates or milestones, including for acceptance testing and (in the case of the Client Website) the Launch Date, as are agreed in writing. Time shall not be of the essence of the Agreement for supply of the Services or any performance by us but shall be of the essence for any performance by you.
4.5 You shall at your own cost:
4.5.1 procure all third party consents and registrations for performance by us of the Agreement and for other purposes agreed in writing (save those by law we must obtain or which we agree in writing to obtain);
4.5.2 provide all Documents or other information or property you agree to supply or make available at times or on dates or during periods set out or referred to in the Acknowledgement or otherwise agreed in writing and (subject to that) in time to enable the Agreement to be performed by us;
4.5.3 promptly notify us of any proposed changes to the Services and/or requirement for additional services or any circumstances you know will or may prevent or restrict us from performing the Agreement in whole or in part;
4.5.4 produce evidence of data protection compliance and insurance we request;
4.5.5 procure your personnel, agents and contractors are readily available; and
4.5.6 co-operate fully in performance of the Agreement.
4.6 We may by notice to you suspend supply of the Services in whole or in part:
4.6.1 if you do not pay any sum due to us under the Agreement by the due date;
4.6.2 in circumstances referred to in clauses 4.2, 6.7 or 8.3 or (as the case may be) stated in the Acknowledgement or otherwise agreed in writing; or
4.6.3 until any pre-requisite to our supply agreed to be met by you is satisfied;
and if we do so we may also vary the Agreement on the basis stated in the Terms
including by variation of any performance dates or milestones as we think fit.
4.7 Subject to a third party's rights, the property and all rights and IPR in or in respect of:
4.7.1 our Website and its content, the System, the Software and all associated Documents and other information and property supplied or made available by us;
4.7.2 (subject to sub-clause 4.7.1 and clause 4.10) all Documents and other information and property created, supplied or made available by us;
4.7.3 all names (including domain names) and logos used by us; and
4.7.4 all skills, knowledge, techniques and methods employed in our supply
shall at all times solely belong to us or the relevant third party provider.
4.8 Subject to a third party's rights, the property and all rights and IPR in or in respect of
all Documents and other information and property created, supplied or made
available by you shall at all times solely belong to you or the relevant third party
provider.
4.9 Each party grants or shall use best endeavours to procure the relevant third party provider grants to the other party with effect from the Agreement Date, or (if later) the date the subject matter is supplied or made available, a non exclusive world wide licence for the other party to use subject matter supplied or made available (without obligation to pay any royalty, licence fee or other sum except as stated in clause 5 or otherwise agreed in writing and (with the prior written consent of the grantor) transferable and with a right to sub-licence) to perform the Agreement and for other purposes agreed in writing and which licence (and any sub licence) ends on cancellation or termination or expiry of the Agreement unless otherwise agreed in writing.
4.10 Unless otherwise agreed in writing and subject to a third party's rights, the property and all rights and IPR in or in respect of Deliverables shall at all times solely belong to us or the relevant third party provider. Subject to that we grant or shall use best endeavours to procure the relevant third party provider grants to you with effect from the Agreement Date or (if later) the date the Deliverable is supplied or made available a non exclusive world wide licence for you to use the Deliverable supplied or made available (without obligation to pay any royalty, licence fee or other sum except as stated in clause 5 or otherwise agreed in writing and (with the prior written consent of the grantor) transferable and with a right to sub licence) to perform the Agreement and for other purposes agreed in writing and which licence (and any sub-licence) survives cancellation or termination or expiry of the Agreement if all sums payable to us and any relevant third party provider have been paid in respect of the Deliverable.
4.11 Subject to clause 4.12 all your Confidential Information shall be kept strictly confidential by us and not used or disclosed for any purpose and all our Confidential Information shall be kept strictly confidential by you and not used or disclosed for any purpose. This restriction extends to the existence and content of the Agreement. Each party shall use best endeavours to ensure its personnel, agents and contractors are aware of and abide by this restriction in favour of the other party.
4.12 The restriction in clause 4.11 shall not apply to Documents or other information:
4.12.1 owned or independently developed by the receiving party or in the possession of it or in the public domain at the time of disclosure or which later becomes public knowledge but not as a result of breach of clause 4.11 or any confidentiality obligation to the disclosing party or a third party for whom the information is held in confidence;
4.12.2 to the extent use or disclosure is permitted by these Terms or with the prior written consent of the disclosing party or a third party for whom held in confidence or to perform the Agreement or for other purposes agreed in writing Provided that each party shall use best endeavours to ensure disclosure is only made to its personnel, agents and contractors who need to know and to other persons expressly permitted by the disclosing party or such third party to receive it and in each case only to the extent required;
4.12.3 to the extent disclosure is required to comply with legal requirements imposed by a court or other competent authority or other applicable law; or
4.12.4 to the extent use or disclosure is required to enforce the Agreement.
5. CHARGES
5.1 Subject as provided in these Terms, the Charges and other sums payable in addition to the Charges by you are set out or referred to in the Acknowledgement. Those not set out or referred to shall be confirmed in writing on or as soon as practicable after the Agreement Date including sums payable to any third party by us or direct by you.
5.2 We may, by giving notice to you from time to time on or after the Agreement Date, increase the Charges to reflect any increase in supply cost to us due to a factor beyond our reasonable control; a change to the Agreement (including a change to the Services and/or any additional services to be supplied by us agreed in writing) or fault attributable to you or your personnel, agents and contractors.
5.3 You shall also pay to us unless otherwise stated in the Acknowledgement:
5.3.1 without prejudice to clause 5.2, all subscription and licence fees and other sums payable to third parties if not agreed in writing as being included in the Charges and all additional or unforeseen costs incurred at your request; and
5.3.2 Value Added Tax or any other applicable sales tax at the applicable charge rate and any other tax, duty or impost and all charges, costs and expenses payable to third parties in respect of the Services or supply or post supply.
5.4 Save as otherwise set out or referred to in the Acknowledgement or agreed in writing the Charges and other sums payable by you are payable as follows:
5.4.1 the Charges payable for design and development work for a new Client Website are payable in stages and (unless otherwise agreed in writing) as to one half (1/2) up front against our invoice issued by us before, on or as soon as practicable after the Agreement Date and one half (1/2) against our invoice issued by us on or as soon as practicable after the date we handover the CMS Software connected with operation of the Client Website and which is supplied or made available in accordance with clause 4;
5.4.2 the Charges payable for design and development work for an existing Client Website are payable against our invoices issued by us as confirmed in writing;
5.4.3 the Charges payable for search engine optimisation and certain other Services as confirmed in writing are payable on a monthly retainer basis in advance of the amount agreed in writing and (unless otherwise agreed in writing) if such Services are to be supplied in respect of a new Client Website the first of the monthly payments is payable on the same date that the final one instalment referred to in sub-clause 5.4.1 is due and payable in respect of such Services for the first month (which month begins with the Launch Date) and if such Services are to be supplied in respect of an existing Client Website the first of the monthly payments is payable on the Agreement Date in respect of such Services for the first month (which month begins with the Agreement Date) and thereafter on the first day of and for each successive month in each case against our invoice(s) issued by us;
5.4.4 the Charges payable for marketing (including "PAY PER CLICK") and other Services (not referred to above) are payable against our invoices issued by us as confirmed in writing; and
5.4.5 (subject as provided above including as regards sums included in the relevant invoices referred to above) all other sums are chargeable to you as we think fit; and you shall pay by electronic transfer to our bank account or by such other payment method agreed in writing and do so not later than the agreed date referred to above or (if the relevant invoice has not been received before such agreed date) the date of receipt of the relevant invoice and in any other case within 21 days from the date of receipt of the relevant invoice issued by us or within such later period agreed in writing. We shall be entitled to payment for any Deliverable whether or not ownership of it has passed to you. Time for any payment by you shall be of the essence of the Agreement.
5.5 Subject to clause 3.5 as regards payment in the event of cancellation, all Charges and other sums payable by you become due and payable forthwith (whether or not invoiced) on cancellation or termination or expiry of the Agreement.
5.6 All payments shall be made in sterling or (if different) the currency of the invoice in full without set off, deduction or counterclaim (save a deduction for tax required by law when payment shall be grossed up to the amount we would otherwise receive).
5.7 Without prejudice to our other rights, we may if a payment is not made on a due date:
5.7.1 suspend the supply of the Services in whole or part as we think fit; and/or
5.7.2 appropriate any payment made to such of the Services as we think fit.
5.8 Clauses 11.1 and 11.2 shall also apply to any failure to make or late payment by you.
6. LIABILITY AND INDEMNITY
6.1 Nothing in this clause 6 or any term or provision of the Agreement shall exclude or limit liability of a party to the other party in the following circumstances:
6.1.1 fraud or fraudulent misrepresentation by the party;
6.1.2 personal injury or death caused by the negligence of the party or of those of its personnel, agents or contractors for whom that party is responsible in law;
6.1.3 personal injury or death or any other loss or damage for which the party is responsible by virtue of the Consumer Protection Act 1987; or
6.1.4 if the liability cannot be excluded or limited by law.
6.2 Except for any liability in circumstances stated in clause 6.1, and subject to the following provisions in this clause 6, our liability to you arising out of or in connection with the Agreement or its subject matter or performance (including your use of any Deliverable) (whether liability arises from negligence, breach of contact, breach of statutory duty, misrepresentation or any cause) shall not exceed the greater of £5000 (five thousand pounds) and an amount equal to the aggregate of the Charges paid by you as the Client for the month in which the event or circumstance giving rise to liability occurred (or the first if there is a series of connected events or circumstances) (in each case less any refund under or in connection with the Agreement (including any service credit or rebate)).
6.3 Notwithstanding clause 6.2, we shall not be liable to you or any third party for or in respect of any special, indirect or consequential loss or damage (whether financial or otherwise) or for any loss of data, profit, revenue, contracts or business howsoever caused (whether arising from negligence, breach of contact, breach of statutory duty, misrepresentation or any cause), even if the same was foreseeable by us, or the possibility thereof is or has been brought to our attention.
6.4 Notwithstanding clause 6.2 if you have a complaint about the Services or performance of the Agreement or believe there are grounds for a claim you agree:
6.4.1 to promptly give notice to us and in any event within 14 days of the date of the relevant supply by us or (if different) the date of the claim arising or (if it involves a third party claim and is later) of you becoming aware of the claim and giving reasonable details of the subject matter and proposals to settle or determine the claim and thereafter at your cost such information as reasonably requested and giving us a reasonable opportunity to investigate;
6.4.2 if it is or includes a third party claim not to admit liability or settle or compromise the claim without our prior written consent (not to be unreasonably withheld); and
6.4.3 if we are liable but it is a matter capable of mitigation or remedy permit us at our cost to take reasonable steps to do so, including having conduct of any negotiations or litigation or to settle or compromise a third party claim and you agree to provide all reasonable assistance to us, our liability to you being reduced or extinguished accordingly and in any event subject to the sum provided for in clause 6.2 as to our maximum liability,
and (subject to clause 6.1) we shall not be liable if you do not comply with this clause 6.4 and/or do not issue proceedings within any limitation period in law.
6.5 You must notify any error or omission in the Acknowledgement or any other Document or information supplied or made available by us within 14 days of supply or availability or otherwise we may treat it as correct and accurate.
6.6 We shall not be liable for any error or omission in any Document or other information supplied or made available by you or a third party or in any respect arising directly or indirectly from the error or omission or for accidental loss of or damage to any Document or other information or property supplied or made available by you or any third party or in any respect arising directly or indirectly from such loss or damage.
6.7 We shall not be liable for failure or delay in supply of the Services nor for death or personal injury or any other loss or damage arising directly or indirectly from:
6.7.1 your or your personnel, agents or contractors being at fault; or
6.7.2 any event or circumstance which is Force Majeure.
6.8 We shall not be liable for and you shall indemnify us in full against all actions, proceedings, losses (including loss of profit), damages, costs (including labour and
materials used), expenses, claims, demands and liabilities brought or incurred
(including to settle a third party claim) or arising directly or indirectly from:
6.8.1 any Documents or other information supplied or made available by you being incomplete, inaccurate, illegible, out of sequence or in the wrong form or arising from such Documents or other information, or any other property you are to supply or make available, late or non-arrival or any defect in them;
6.8.2 any claim for actual or alleged infringement of IPR or other rights of a third party from receipt, possession, processing or use or disclosure by us or our personnel, agents or contractors of any Documents or other information or other property supplied or made available by you for agreed purposes;
6.8.3 any claim for actual or alleged infringement of IPR or other rights of a third party for illegal, una
