TERMS & CONDITIONS AGREEMENT
These terms and conditions (terms agreement), as amended from time to time (The “ Conditions”) apply to all our clients, for the services provided by Paul Sullivan Marketing Limited, 10614777, t/a Digital BIAS (The “ Supplier“) as specified in the applicable Order Form/Specification, as defined in section SPECIFICATION (the “ Services”). Please read these Conditions carefully to ensure that you are fully aware of and understand what our mutual obligations and expectations are.
In these Conditions, the following rules apply:
- a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- a reference to us, our, we refer to the “ Supplier“;
- a reference to you or your refers to the relevant person or company purchasing the Services from the “ Supplier“;
- A reference to either party includes its personal representatives, successors or permitted assigns;
- a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
- any phrase introduced by the terms including include, in particular, or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
- a reference to writing or written includes faxes and e-mails.
THE ORDER FORM
- The Conditions are often used together with an attached services order form (the “Order Form”) which sets out the details specific to you, such as the price and specification. If we are not using the Order Form in our contract with you, where the Conditions refer to the Order Form, that will instead refer to what we have agreed with you elsewhere in writing (be it an email, fax or any other form of written communication).
- When we refer to the “ Contract”, we mean the entire agreement to provide services to you, which includes these Conditions, the Order Form and any written document made between you and the “ Supplier”.
- The Order Form constitutes an offer by the “ Supplier” to provide the Services in accordance with these Conditions. This offer is deemed to be accepted when you sign the Order Form at which point the Contract shall come into existence.
- Any quotation given by us shall not constitute an offer and is only valid for a period of 14 days from its date of issue.
- If acts beyond our reasonable control occur (including but not limited to such as fire, flood, storm, war, riot, malicious damage, accident, strikes or other industrial disputes, acts of God, compliance with any law or governmental order or regulations, or default of 3 rd party suppliers or subcontractors), whilst we will obviously do our best to deliver the Services, we shall not be liable for any resulting delay or non-performance of our obligations as a result.
- If any of the unfortunate events described in clause 1 above prevent us from providing any aspect of the Services for more than 2 weeks, we have the right to terminate the Contract immediately by giving written notice to you (without limiting our rights or remedies under the Contract).
- If any provision of these Conditions is or becomes invalid, illegal or unenforceable, then it shall be deemed modified to the minimum extent necessary to make it valid and enforceable. If a modification is not possible, the relevant provision shall be deemed to be deleted. You agree that any deletion or modification under this clause shall not affect the validity and enforceability of the rest of these Conditions.
- We sometimes work with a number of very talented sub-contractors who will help us deliver the Services to you. At the time we agree to the Specification with you, we won’t always know which sub-contractor will be helping us so we reserve the right to put any of them on the job.
- These Conditions will take precedence over all other terms and conditions with respect to the Contract.
- A person who is not a party to the Contract shall not have any rights to enforce its terms.
- Any variation to these Conditions and the Contract shall only be effective if agreed in writing and signed by the Supplier.
- The Contract and any disputes or claims arising out of or in connection with it shall be governed by the law of England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract.
- Together we will agree on exactly what work you would like us to carry out and this will form the specification (the “ Specification”).
- Once the Specification is agreed:
if you change your mind about any element of the Services we are happy to alter the Specification or alternatively agree on a new one. All changes to products or Services outside of the design or consultation stage will become chargeable at the appropriate market rate applicable at such time.
if any subsequent and unforeseen purchases of 3 rd party services or products are required, including but not limited to software, hosting and content, then these costs shall be borne solely by you. Any additional time incurred will be chargeable to you on our standard hourly charge of £ (dependent on service) which will be notified to you in accordance with our terms in clause 1 under SPECIFIC RATES/CHARGES.
- If we have agreed that certain parts of the Services will be completed by certain dates, such dates will be known as “milestones” and included in the Specification.
- During developments of projects, some will take longer periods than others to reach maturity. During this process, newer forms of technology may be released to the marketplace. Whilst we appreciate that everyone wants to ensure that their sites contain the latest methodologies, the Supplier can only attribute the use of the available technology and methods available at the commencement of the project. Any inclusion of more recent methods or technologies will revert to clause 2 under this section.
- We have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and we shall notify you if this happens.
- The Contract will begin on the date you sign the Order Form and will continue until the end of the warranty period described above.
- Subject to section TERMINATION, if we have agreed to provide ongoing services to you (such as hosting and maintenance) the Contract will last until the date specified on the Order Form, or if no date is specified, until one party gives the other 30 days’ written notice, or serves the minimum period for Inbound Marketing or conversational marketing (see MARKETING clause 4 and TERMINATION clause 1) that they would like the Services to end.
- In the course of working together, we may each have access to information that the other considers private and confidential. This may be about the way we each run our businesses, about our competitors or clients, about our software, our finances or a whole host of other delicate subjects. We each agree that we will only disclose such confidential information to those of our respective employees, agents, and subcontractors who need to know it for the purpose of discharging the/our respective obligations under the Contract, and we shall each ensure that such employees, agents, and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. It is also understood that we may each also disclose such confidential information was strictly required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause shall survive termination of the Contract.
- Nothing in these Conditions shall limit or exclude Paul Sullivan Marketing’s liability for:
- death or personal injury caused by our negligence, or the negligence of its employees, agents or subcontractors;
- fraud or fraudulent misrepresentation; or
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982.
- Subject to clause 1 above:
- we shall never be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of goodwill or injury to reputation, loss of business opportunity or any indirect or consequential loss arising under or in connection with the Contract;
- and our total liability in respect of all other losses arising under or in connection with the Contract, shall in no circumstances exceed the price we have agreed in respect of the Services as per the Order Form.
- This section LIABILITY shall survive termination of the Contract.
SERVICE LEVEL AGREEMENT
- We shall endeavour to respond within 24 hours of receipt of non-emergency communications received during normal working hours which are Monday to Friday 9 am to 6 pm (GMT).
- No communication unless URGENT will be responded to outside of these hours unless agreed in advance. All urgent communications by telephone must be followed up by email with the word URGENT in the email title
- For the purposes of the section, Emergencies consist of:
failure of your product to work in a business-like fashion or where the product fails to deliver business functionality;
hosting failure (subject to your subscription payments being fully up to date); and
where your product fails to operate.
- Where no separate support and or maintenance contract is in place, no works will be carried out until the fees are agreed in advance at our standard rate of £120 plus vat per hour.
- Solution times cannot be specified until the Supplier or any 3rd party support team has assessed the situation. At this point, we will issue an “Estimated Time of Solution” and endeavour to provide regular updates until we have rectified the problem.
- We shall endeavour to respond to emergency communications within 4 hours of receipt; unless prevented to do so by acts of nature, power loss, loss of media or access to communications (including phone and internet access).
- Meetings: All physical meetings may only be booked within the Supplier’s normal working hours; however, we may exercise our sole discretion to have meetings outside of normal working hours. We understand that you have busy schedules and need to sometimes arrange meetings outside of normal working hours. Please note that we shall endeavour to accommodate you in this where possible but it is not of the essence for purposes of the Contract.
CONTRACTUAL CLIENT OBLIGATION
- When you sign the Order Form, you agree to supply at your own expense, unless the “Supplier” is retained to do so, all related content which includes, but is not limited to, images logos and text that we may reasonably require in order to provide the Services, within a minimum of 7 working days in advance of the agreed delivery date of the Services. The “ Supplier” where possible will send reminders to you but this is not an obligation under the Contract and responsibility for supplied content remains with you at all times. See clause 3 under PAYMENT.
- You shall ensure that the terms of the Order Form (and information provided in the Specification), are complete and accurate.
- Where your content is not delivered on time, the full payment amount specified in the Order Form becomes immediately due and payable. See clause 3 under PAYMENT which supersedes any agreement whether written or verbal.
- You agree at all times to strictly adhere to these Conditions.
- You accept that any works added outside of the design period or not specified within the website design description will incur further charges and be subject to clause 2 under SPECIFICATION.
- If you do not meet your obligations under the Contract, full payment of outstanding balances will become immediately due and payable and shall be subject to interest as provided in clause 4 under PAYMENT.
- Pursuant to clause 2 under PAYMENT, the agreed % of the full balance is immediately payable upon your signing the Order Form. The interim balance of agreed % is due upon the integration of CMS and “theme” or “skin” and the final balance is due when we sign off the website/stage of development, monthly retainer, or project-based outputs. There are no alternative options to this unless otherwise agreed in writing. Late payments shall incur charges of £25.00 per late payment in addition to potentially accruing interest per clause 4 under PAYMENT.
- You are required to provide the Supplier with all snag/progress reports by no later than 5 working days from the first review date. The Supplier manages many projects simultaneously and you may suffer from delivery times if you do not stick to the required deadlines or milestones as set out by the Supplier.
- Your project will be managed by a collaborative resource for project management. You will need to promptly provide the email addresses of all staff or representatives for your business that need access to the project documents and details. They will be deemed to be a legal representative of your company for the purposes of the Contract and we may accordingly rely on any statements and directions they make, further to clause 2 below.
- We appreciate that during the course of providing the Services, the same person will not always be available to give us instructions and discuss any changes to the Specification. You agree that we are entitled to rely and act upon the instructions of any person employed by you, contracted to you or whom we can reasonably assume is working on behalf of you and you will be bound by such instructions.
INTELLECTUAL PROPERTY RIGHTS
- For the purposes of this section, intellectual property rights (“ IPR”) shall mean patents, rights to inventions, copyright and related rights, trademarks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, domain names, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- All IPR belonging to the Supplier before we begin the Services will remain our property both during and after the Services have been delivered. Equally, any IPR that you own before we begin the Services will remain your property.
- Any IPR that we have created during the course of the Services will belong to us (except where we specifically agree to release the IPR), both during and after the Services. However, we hereby grant you a non-exclusive, perpetual, worldwide and royalty-free license to use any of our IPR that are incorporated into the website/software developed under the contract. You may not resell or reuse all or part of our IPR without written agreement from us.
- Sometimes we will use IPR belonging to third parties (with their permission, of course). If we have used any third party IPR in the website/software, we will procure and/or purchase all necessary licenses for you to use such IPR yourselves on completion of the Services. We also assure you that we have all necessary consents and licenses to be using the third party IPR in the first place.
- You will no doubt provide us with certain materials which you wish to be included on the website, including but not limited to information, graphics, logos, photographs, video, text, designs and images (the “Content”. You assure us that you either own all IPR in the Content or have a license to use such IPR and you hereby grant to us a non-exclusive non-transferable license to use the content for the purposes of performing the Services.
- Google rank websites higher that have SSL certificates, therefore the Supplier have included the cost of the certificates in our hosting packages. This can affect the cost of our services should the cost of the SSL certificate increase.
- Once the Services are completed we will carry out the acceptance tests as described in the Specification having first given you 7 days’ notice:
if the website/software does not pass the acceptance tests, we will use all reasonable endeavours to remedy the relevant issues as soon as possible and the acceptance tests will be repeated; and
- if the website/software passes the acceptance tests, it shall be deemed to have been conclusively and finally accepted.
If you decide to “go live” with the website/software before acceptance testing has taken place, you will have conclusively accepted the website despite the fact that the acceptance tests have not been carried out.
- Please note the following liabilities when works are cancelled mid-contract, which cover all coding, design or content related activities performed to the date of cancellation:
- Graphics work will be charged at £600.00 plus vat per day standard rates and then at £800.00 plus vat per hour on weekends if they were so worked
- Hours spent on programming will be charged out at £900.00 plus vat per day standard time and at £1200.00 plus vat per day weekends and public holidays
- In return for you paying us the price agreed on the Order Form, we will provide you with the Services.
- Unless agreed otherwise we will send you an invoice for the first part of the project or milestone of the agreed price on the commencement date (as stated on the Order Form) which will be due and payable immediately as of the invoice date. (or prices are subject to revision) Further advance invoices per milestone, stage or monthly retainer will be issued and require payment no later than 3 days prior to commencement of said stage, milestone or retainer.
- Where we are not responsible for the content of the Service provided, should such Service be completed prior to you being ready to supply relevant content pursuant to your obligations under clause 1 under CONTRACTUAL CLIENT OBLIGATION, then all outstanding balances become due and payable immediately, unless otherwise agreed.
- Unless agreed otherwise in writing, we reserve the right to (a) charge you interest on any due outstanding amount at an annual rate of 4% above the base rate of TSB Bank plc and/or (b) suspend all or part of the Services. Interest will accrue on a daily basis from the due date until the outstanding amount is paid and you are to pay the interest together with the outstanding amount.
- Your hosting related payments shall be made in accordance with clause 1 under HOSTING and any late or overdue payments related to hosting will also accrue interest pursuant to clause 4 of this section.
- Where we have special offers, payments for these services are collected in advance.
- Where 3rd parties are involved in the production and delivery of the Services, should excessive delays be caused by failure to deliver aspects or parts of the Services then we reserve the right to split invoices to avoid unnecessary delays in payment as long as all services required of the Supplier to that point have been delivered in full. This is also covered in clause 4 under CONTRACTUAL CLIENT OBLIGATION.
- We necessarily reserve the right to increase our standard rates, provided that such charges cannot be increased more than once in any 12-month period. We will, of course, give you written notice of any increase at least 30 days before the proposed date of the increase. If not acceptable, you should notify us in writing within 7 days of the date of our notice. As a result, we shall have the right (without limiting any other rights or remedies) to terminate the Contract with immediate effect.
- All contractual payments, also referred to as recurring payments are collected by direct debit (DD). Only per project website contracts are collected by invoice payable in advance.
- If payments are not made on time and are delayed by 7 working days or more, the client agrees to make payment via our Iwoca payment partner. This is a credit facility with a surcharge of 3% on the full value of the outstanding payment and allows the client up to 90 days to settle the outstanding balance. The agreement of payment is direct with Iwoca see here https://www.iwoca.co.uk/iwocapay-sellers/.
- The provision of marketing services is done on an agreed fixed term basis, usually 6 consecutive months or 12 consecutive months.
- Each marketing contract consists of a setup period, plus the agreed fixed term and you will be billed by fix term direct debit. A typical example would be the setup fee and the first months’ fee.
- Billing for the month will occur on the 1st of the month in advance of the provision of service. You will be billed the setup costs in advance of the provision of services. The setup fee will be billed and due on the date of commencement of the contract
- Marketing contracts are fixed-term and will be renewed automatically if no notice is served. Notice to quit must be received in writing and signed off by the Supplier a minimum 30 days before the end of the agreed provision of services. Marketing contracts are deemed contractual for six or twelve months unless the Supplier fails to deliver its agreed services. Annual contracts must run a minimum of 6 months with a 30 day notice period to quit.
- The provision of marketing services will be deemed contractual if the client has specifically requested a pre-defined package or by a customised proposal which if agreed will be agreed by email, signed digitally or by hand and by receipt of the signed order form (or confirmed by email response) and confirmation of acceptance of these terms and conditions.
- Marketing contracts are run on a points-based system. Each monthly retainer has an equivalent number of setpoints that are non-transferable and do not carry over any calendar month in any circumstances. It is up to the client to ensure that they maximise each monthly set of points as advised by the Supplier. Where the client does not agree or instruct the use of points in any calendar month the points are deemed forfeit.
- The provision of website services is delivered on an agreed fixed term basis; typically per project or an annual retainer.
- Each website contract consists of an agreed fixed term with deliverable milestones and you will be billed in advance for each milestone.
- Billing for the project will occur ten days in advance of the provision of service with a maximum 7 days payment period. You will be billed for further milestones ten days in advance with a maximum 7 days payment period. Any late payments will delay works commencing and penalties will become due pursuant to clause 9, CONTRACTUAL CLIENT OBLIGATION.
- Website contracts are fixed-term and will be renewed automatically if no notice is served. Notice to quit must be received in writing and signed off by the Supplier a minimum of 30 days before the end of the agreed contractual provision of services. Website contracts are deemed contractual for a fixed period or for twelve months unless the Supplier fails to deliver its agreed services. Annual contracts must run a minimum of 6 months with a 30 day notice period to quit. This clause supersedes TERMINATION clause 1.
- The provision of website services will be deemed contractual if the client has specifically requested a pre-defined package or by a customised proposal which if agreed will be agreed by email, signed digitally or by hand and by receipt of the signed order form (or confirmed by email response) and confirmation of acceptance of these terms and conditions.
- The hosting is provided at £35.99 per month for non-eCommerce websites and from £129.00 per month for eCommerce websites. Hosting is billable annually at the point of sale. The cancellation of hosting requires no less than 30 days’ written notice prior to contract expiry. If we are not advised of cancellation, we shall assume you wish to renew your annual hosting services and we shall invoice you in advance accordingly under the terms of this contract. Payments are collected by Direct Debit.
- Hosting is provided by a 3 rd party provider. They provide all hosting/server related support and where a problem arises we will defer to their timeframe for remedy.
- If hosting is suspended for non-payment or late payment and technical issues arise, then you are liable to pay the cost of fixing the issue at our standard hourly rate of £120 plus VAT unless there is a support contract in place. When a non-payment related issue causes a technical fault, the Supplier will work to fix this without charge.
- The Supplier often uses WordPress to provide website services. WordPress requires updating of plugins as explained in your when you accept your website contract. Plugins are continually updated by their respective developers to solve security and performance issues. Not updating plugins can lead to your website being hacked, your hosting account being hacked and our servers being blacklisted. Therefore updating of plugins has been factored into our monthly hosting fees.
- Email services are part of your hosting account. We offer Office365 email through a 3rd-party provider at a cost of £4.99 per month per email account. Where possible the Supplier will set up the services on your IT equipment, but we are not IT Software/Hardware Specialists. Should we be unable to do so, noting MAC’s are often problematic, we will refer you to our IT Software partners. There may be an additional cost for this service.
- We warrant to you that the Services will be provided using reasonable care and skill at all times.
- We assure you that the website/software will conform to the Specification for a minimum period of 90 days following acceptance (unless we’ve agreed a different period in the Specification) providing we are hosting the product. Where we are not hosting the product we provide a 30-day warranty. If a defect occurs during the warranty period, we will rectify or remedy that defect. For the purposes of these conditions, a defect is a problem with the website/software that has a material effect on its use or operation or a failure of the website/software to operate in accordance with the Specification.
- The warranty is made invalid if negligence on the Clients behalf has taken place. That is by sharing passwords, not updating plugins leading to a hacking scenario or of the clients’ activities destroy, impact or delete relevant code or content.
- Either of us may terminate the Contract by giving 30 days’ written notice to the other party except in contractual marketing agreements where the minimum service period is required.
- We may terminate the Contract with immediate effect by giving written notice to you if you fail to pay any amount due under the Contract and fail to pay all outstanding amounts within 7 days of either receipt of a relevant invoice or email notification.
- Either of us may terminate the Contract with immediate effect by giving written notice to the other party if:
if the other party commits a material breach of a term of the Contract and fails to remedy it within 21 days of being asked in writing to do so;
the other party 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 or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) 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;
the other party 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 [other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party];
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
the other party (being an individual) is the subject of a bankruptcy petition or order;
or an application is made to the 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 other party (being a company).
- Without limiting our other rights or remedies, we are allowed to suspend the provision of the Services under the Contract or any other agreement between us, if you become subject to any of the events listed in clause 3(b) to clause 3(f) of this section, or if we reasonably believe that you are about to become subject to any of them, or if you fail to pay any amount due under this Contract on the due date for payment.