TERMS AND CONDITIONS OF SERVICE
Application and entire agreement
1. These Terms and Conditions apply to the provision of the services detailed in our quotation (Services) by Webworks-UK Ltd. a company registered in England and Wales under number 09511025 whose registered office is at 3rd Floor, 86-90 Paul Street, London,EC2A 4NE, (we or us), to the person buying the services (you).
2. You are deemed to have accepted these Terms and Conditions when you accept our quotation or from the date of any performance of the Services (whichever happens earlier) and these Terms and Conditions and our quotation (the Contract) are the entire agreement between us.
3. You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf. These Conditions apply to the Contract to the exclusion of any other terms that you try to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
4. A “business day” means any day other than a Saturday, Sunday or public holiday.
5. “Business hours” means between 09:00 and 18:00 GMT.
6. The headings in these Terms and Conditions are for convenience only and do not affect their interpretation.
7. Words imparting the singular shall include the plural and vice-versa.
8. We warrant that we will use reasonable care and skill in our performance of the Services which will comply with the quotation, including any specification in all material respects. We can make any changes to the Services which are necessary to comply with any applicable law or safety requirement, and we will notify you if this is necessary.
9. We will use our reasonable endeavours to complete the performance of the Services within the time agreed or as set out in the quotation; however, time shall not be of the essence in the performance of our obligations unless explicitly committed in writing.
10. We will carry out our work on business days and during business hours only. Out of hours working may be carried out at our discretion in the normal conduct of our business. Unplanned out of hours work, including emergency support, that cannot be deferred to the next available working day will be billable according to our currently published rates.
11. All of these Terms and Conditions apply to the supply of any goods as well as Services unless we specify otherwise.
12. We will carry out work only on systems related to the services described in our quotation, and only for the duration of the assignment. We will not provide support, consultancy, maintenance or development for third party technologies or services unless agreed in name under separate contractual arrangement.
13. Ownership, responsibility and management, including right of use, of systems or services provided by us will remain in a state of development until accepted fully by you. During a development period we reserve the right to modify and test systems without obstruction, including rendering those systems inaccessible to you or the public at any time. Upon acceptance of our work, the site will be classified as ‘Production’ whereby no work will be carried out unless specifically arranged under new instruction, as part of an ongoing service arrangement, or for support purposes. Acceptance must take the form of formal written notification from you via letter or email and settlement of any outstanding fees for the project, after which time ownership and operational responsibility will be transferred to you in full.
14. You must obtain any permissions, consents, licences or otherwise that we need to complete our work, and must give us access to any and all relevant information, materials, properties and any other matters which we need to provide the Services.
15. If you do not comply with clause 14, we can terminate the Services.
16. We are not liable for any delay or failure to provide the Services if this is caused by your failure to comply with the provisions of this section (Your obligations).
17. Delays incurred by your failure to comply with the provisions of this section may cause us to re-plan our existing workload. We may charge a re-planning fee and seek compensation for costs arising from re-planning our other efforts.
18. The fees (Fees) for the Services are set out in the quotation and are calculated on a fixed fee or time & materials basis.
19. In addition to the Fees, we can recover from you a) reasonable incidental expenses including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, b) the cost of services provided by third parties and required by us for the performance of the Services, and c) the cost of any materials required for the provision of the Services.
20. You must pay us for any additional services provided by us that are not specified in the quotation in accordance with our then current, applicable hourly rate in effect at the time of performance or such other rate as may be agreed between us. The provisions of clause 17 also apply to these additional services.
21. The Fees are exclusive of any applicable VAT and other taxes or levies which are imposed or charged by any competent authority.
Cancellation and amendment
22. We can withdraw, cancel or amend a quotation if it has not been accepted by you, or if the Services have not started, within a period of 30 days from the date of the quotation, (unless the quotation has been withdrawn).
23. Either we or you can cancel an order for any reason prior to your acceptance (or rejection) of the quotation.
24. If you want to amend any details of the Services you must tell us in writing as soon as possible. We will use reasonable endeavours to make any required changes and additional costs will be included in the Fees and invoiced to you.
25. If, due to circumstances beyond our control, including those set out in the clause below (Circumstances beyond a party’s control), we have to make any change in the Services or how they are provided, we will notify you immediately.
Payment & Late Payment
26. We will invoice you for payment of the Fees either:
a. for services, up to the value of £500, prior to commencing the work ; or
b. for services, between £500 and £2000, 50% prior to commencing the work and 50% after completion; or
c. for services, over the value of £2000, 30% prior to commencing work, 35% to be paid half way through the work and 35% on completion ; or
d. on the invoice dates set out in the quotation.
27. You must pay the Fees due within 15 days of the date of our invoice or otherwise in accordance with any credit terms agreed between us.
28. Time for payment shall be of the essence of the Contract. Furthermore, we reserve the right to withhold both private and public access to any of our work until all fees have been paid.
29. Without limiting any other right or remedy we have for statutory interest, if you do not pay within the period set out above, we may charge you interest at the rate of 4% above the base lending rate of the Bank of England per month on the amount outstanding, until payment is received in full.
30. All payments due under these Terms and Conditions must be made in full without any deduction or withholding except as required by law and neither of us can assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part.
31. If you do not pay within the period set out above, we may suspend any further provision of services and cancel any future services which have been ordered by, or otherwise arranged with you, including emergency support or any services we may provide on a recurring basis.
32. If you do not pay within the period set out above, we may request full payment in advance before commencing work on future assignments or work packages. Furthermore, any free or discounted service offers may be withdrawn and require payment to continue.
33. Outstanding invoices must be settled prior to our acceptance of new or additional instructions.
34. Receipts for payment will be issued by us only at your request.
35. All payments must be made in British Pounds unless otherwise agreed in writing between us.
Sub-Contracting and assignment
36. We may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights under these Terms and Conditions and can subcontract or delegate in any manner any or all of our obligations to any third party.
37. You may not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under these Terms and Conditions.
38. We can terminate the provision of the Services immediately if you:
a. commit a material breach of your obligations under these Terms and Conditions; or
b. fail to pay any amount due under the Contract on the due date for payment; or
c. are or become or, in our reasonable opinion, are about to become, the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtor; or
d. enter into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors; or
e. convene any meeting of your creditors, enter into voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of your assets or undertakings or any part of them, any documents are filed with the court for the appointment of an administrator in respect of you, notice of intention to appoint an administrator is given by you or any of your directors or by a qualifying floating charge holder (as defined in para. 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for your winding up or for the granting of an administration order in respect of you, or any proceedings are commenced relating to your insolvency or possible insolvency.
39. We reserve all copyright and any other intellectual property rights which may subsist in any goods supplied in connection with the provision of the Services. We reserve the right to take any appropriate action to restrain or prevent the infringement of such intellectual property rights.
40. Not withstanding any articles protected by clause #37, unless explicitly licensed for exclusive use, we reserve the right to re-use and / or re-sell in the future, any processes, features, functionality, solutions or systems developed on your behalf.
Liability and indemnity
41. Our liability under these Terms and Conditions, and in breach of statutory duty, and in tort or misrepresentation or otherwise, shall be limited as set out in this clause.
42. The total amount of our liability is limited to the total amount of Fees payable by you under the Contract.
43. We are not liable (whether caused by our employees, agents or otherwise) in connection with our provision of the Services or the performance of any of our other obligations under these Terms and Conditions or the quotation for:
a. any indirect, special or consequential loss, damage, costs, or expenses or;
b. any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation or goodwill; business interruption; or, other third party claims; or
c. any failure to perform any of our obligations if such delay or failure is due to any cause beyond our reasonable control; or
d. any losses caused directly or indirectly by any failure or your breach in relation to your obligations; or
e. any losses arising directly or indirectly from the choice of Services and how they will meet your requirements or your use of the Services or any goods supplied in connection with the Services.
44. You must indemnify us against all damages, costs, claims and expenses suffered by us arising from any loss or damage to any equipment (including that belonging to third parties) caused by you or your agents or employees.
45. Nothing in these Terms and Conditions shall limit or exclude our liability for death or personal injury caused by our negligence, or for any fraudulent misrepresentation, or for any other matters for which it would be unlawful to exclude or limit liability.
Circumstances beyond a party’s control
46. Neither of us is liable for any failure or delay in performing our obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question. If the delay continues for a period of 90 days, either of us may terminate or cancel the Services to be carried out under these Terms and Conditions.
47. We will warranty our work for defects or mis-configuration for a period of 12 months from the date of completion. Errors, or issues arising from changes to 3rd party software or systems, including updates, tampering, modifications made by others, or other circumstances beyond our control are not covered by this warranty and may be chargeable to remedy.
48. All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).
49. Notices shall be deemed to have been duly given:
a. when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient;
b. when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated;
c. on the fifth business day following mailing, if mailed by national ordinary mail; or
d. on the tenth business day following mailing, if mailed by airmail.
50. All notices under these Terms and Conditions must be addressed to the most recent address, email address or fax number notified to the other party.
51. No delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy nor stop further exercise of any other right, or remedy.
52. If one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provisions will be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable).
Law and jurisdiction
53. These Terms and Conditions are governed by and interpreted according to English law. All disputes arising under these Terms and Conditions are subject to the exclusive jurisdiction of the English courts.
Domain registration and hosting
54. A domain name registrant is an organisation or individual registering a domain name. When you submit your application for a domain name, you become the domain name registrant. You hold full responsibility for maintaining registration of your domain name with a valid registrar. A domain registrar is the company that takes your registration request and reserves your domain for you at the main registry. You may manage your own domain’s addressing scheme and various other related functions through your domain registrar.
55. We are not liable for the performance of 3rd party registrars, nor for upkeep of payments, or notifying you when domain registration arrangements are due to expire.
56. The term “host” describes server infrastructure for the purpose of serving a website publicly to the internet. Unless otherwise arranged, you hold full responsibility for maintaining a suitable hosting service for your website to function upon.
57. We are not liable for the performance of 3rd party host providers, nor for the upkeep of payments, or notifying you when 3rd party hosting arrangements are due to expire.
58. If your website is hosted with us and you require it to reside on a 3rd party host, we will charge a host migration fee. Responsibility for ongoing operation of the 3rd party host and your website’s performance will be transferred to you.
59. We are not liable for the performance or reliability of third party hosted website platforms or services, Shopify, Wix, Mailchimp, Sendin Blue, etc. Nor are we liable for the upkeep of payments, or notification of service expiry, including licenses for plugins and applications.
60. In relation to our work, the term “website” describes one or more electronic files, usually comprising of a machine readable file system and database, for use on suitable web hosting infrastructure platform.
61. The term “DNS” stands for Domain Name System, the internet directory service for resolving an internet domain name to a publicly reachable TCP/IP address.
62. The term “Domain name” refers to a name assigned to you or your business for the purpose of identifying your website and / or hosting services. A domain name consists of a unique name and a Top Level Domain (TLD).
63. A top-level domain (TLD) is a domain at the highest level in the hierarchical Domain Name System of the Internet. For all domains, it is the last part of the domain name, that is, the last label of a fully qualified domain name. For example, in the domain name www.example.com, the top-level domain is com. Responsibility for management of most top-level domains is delegated to specific organisations by the Internet Corporation for Assigned Names and Numbers (ICANN), which operates the Internet Assigned Numbers Authority (IANA), and is in charge of maintaining DNS globally. It is your responsibility, as the domain registrant, to maintain records and conform with any legal obligations prescribed by these governing bodies.
Compatibility, Email and browsers
64. There are numerous web browsers available in the public domain. We will test our work on the latest versions of the most commonly used browsers and operating systems, namely Google Chrome, Safari, Firefox, Internet Explorer and Microsoft Edge. We will test on Windows and Apple Desktop and laptops, Iphone (5 upwards) and Android devices. We will not test for, nor provide support for, outdated, unsupported browsers or operating systems.
65. Other than configuring websites to send contact form messages and system notifications, we do not provide or support email services, even as part of our hosted solutions. Please ensure you have a suitable resource available to assist with any email related issues that may require support when we carry out work for you. If you have an email service provider, they should be your first port of call.
66. Where working on contact form communications using our hosted infrastructure, please note we do not support outgoing or incoming SMTP traffic. This means that your email server or domain’s DNS settings must be configurable to validate email distributed via websites using the same domain.
67. We will provide support for the services we have provided for a period of 30 days following acceptance of our work. After that period, we may charge to investigate and resolve issues.
68. The term ‘Support’ covers investigation and resolution of issues to bring a system back to working order and incidental response to ‘how-to’ queries. Support does not cover content changes, modification to in-built features or standard functionality that may come with themes or plugins. These types of features are referred to as ‘by design’ and are deemed as accepted at the time of delivery, unless uniquely specified as part of a quote, design, scope or proposal.
69. We are unable to provide support for 3rd party technologies, including email. Please ensure you have suitable resources available to support your general IT needs.
70. Whether operating on our own hosted infrastructure or with a third party service provider, final ownership and operational responsibility for your website when in a production (live) state remains with the site owner. The site owner is fully responsible for ensuring their site is maintained and kept up to date to prevent security breaches as vulnerabilities are identified over time.
71. We reserve the right to modify or cease operation of your website if it resides on our infrastructure and, for any reason, presents risk to the ongoing operation of our hosts and other customers. Such cases may include failure to keep software, virus & security protection and plugins up to date, neglecting to protect our systems from network attacks or robots with captcha protection, and failure to keep administrative credentials private. In such cases, we accept no liability for loss of trade, reputational risk, loss of data, or inconvenience caused while protecting our systems and customer communities and provide no guarantee of service until the issue is resolved.
72. Ongoing website operation hosted on 3rd party infrastructure such as Go Daddy, Bluehost, etc. fully remains the responsibility of the website owner. We accept no responsibility for the performance of third party service providers, nor will we liaise with them on your behalf, provide support or troubleshooting services unless engaged to do so.
Resource Solicitation & Non-Compete
73. We use 3rd party freelancers and contractors to work on our projects. You may be introduced to our contracted resources to work on an assignment for you on our behalf. You are expressly prohibited from engaging or soliciting our staff, contractors or freelancers directly to carry out work for you for a period of 6 months from the last time we completed work for you without written permission. For customers using our recurring services, this 6 month period will commence on the date of the last invoice you paid us following notice of cancellation. Customers found to be approaching our resources for work assignments will have their services cancelled and, in the case of financial loss, may face civil action to recover lost earnings.
74. Our contracted resources are contractually bound by a non-compete clause. By approaching our resources directly, you are asking them to breach this agreement.
76. In accordance with GDPR legislation, Webworks-UK Ltd. is the Data Processor and you are the Data Controller. By accepting our Terms and Conditions of service, you agree to the terms of our Data Processing Agreement.
Updated 18th April 2019