THIS IS A LEGAL AGREEMENT between you (the “Customer”) and Visual Digital Ltd (hereinafter referred to as Visual Digital). Please read this Agreement carefully as the terms and conditions stated in this Agreement shall at all times govern the provision of services by Visual Digital Ltd).
1.1. The definitions and rules of interpretation in this clause apply in this Agreement:
1.2. “Domain Name” means any domain name registered by Visual Digital or use in connection with the Site. “Effective Date” means the date of acceptance by Visual Digital of the Customer’s offer in accordance with Clause 2.2. “Intellectual Property Rights” means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trademarks, service marks, trade names, patents, petty patents, utility models, design rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off. “Material” means the content provided to Visual Digital by the Customer from time to time for incorporation in the Site.
1.3. Clause headings do not affect the interpretation of this Agreement. References to Clauses are references to the clauses of this Agreement. Words in the singular include the plural and in the plural include the singular.
1.4. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re- enactment and includes any subordinate legislation for the time being in force made under it.
1.5. 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. References to content include any kind of text, word, information, image, logo or audio or video material which can be incorporated in a website for access by a visitor to that website. Writing or written includes email.
2. APPLICATION OF TERMS AND CONDITIONS
2.1. This Agreement and the terms and conditions contained herein shall prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation or specification, 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 Visual Digital, constitutes an offer by the Customer to purchase the Services specified in it on the terms and conditions stated in this Agreement. No offer placed by the Customer shall be accepted by Visual Digital other than by a written acknowledgement issued by Visual Digital or (if earlier) by Visual Digital stating to provide the Services, when a contract for the supply and purchase of those Services on the terms and conditions stated in this Agreement 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 this Agreement.
2.3. Quotations are given to the Customer on the basis that no agreement shall come into existence except in accordance with Clause 2.2 above. Any quotation is valid for a period of 20 business days from its date provided that Visual Digital has not previously withdrawn it.
3. THE SERVICES
3.1. Visual Digital shall:
3.1.1. design, develop and deliver the Customer’s website (the “Site”) in accordance with the written specification agreed between Visual Digital and the Customer (the “Site Specification”); 3.1.2. host and/or arrange the hosting of the Site; and
3.1.3. provide the Customer with limited Internet search engine optimisation services; on the terms and conditions set out in this Agreement (the “Services”).
4. CUSTOMER RESPONSIBILITIES
4.1. The Customer acknowledges that Visual Digital ability to provide the Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any information and data the Customer provides to Visual Digital. The Customer shall provide Visual Digital
with any such information and data (including Material) within 5 business days of Visual Digital request and warrants that any such information and data (including Material) is accurate, complete and does not infringe the Intellectual Property Rights of any third party.
4.2. Visual Digital reserves the right to delay the commencement of the provision of Services
Until all Material requested from the Customer has been received by Visual Digital. If the Material requested from the Customer is not received within 10 business days of Visual Digital request, Visual Digital reserves the right to demand payment in full for the Services.
4.3. The Customer shall provide Visual Digital with access to the necessary personnel of the Customer, to the Customer’s systems and software, and to all Site and other relevant statistics, information, data and documentation reasonably required by Visual Digital for the performance by Visual Digital of its obligations under this
4.4. The Customer shall be responsible for the accuracy (including grammar and spelling) and completeness of the Material on the Site in accordance with Clause 10.
4.5. The Customer shall be responsible for backing up all information and/or data that is to be transferred as part of the hosting process from the Customer’s existing service provider to Visual Digital. Visual Digital shall not be liable for the loss or corruption of any such information and/or data and Visual Digital shall not provide data restoration facilities for the Customer.
5. DEVELOPMENT AND ACCEPTANCE OF SITE
5.1. Once Visual Digital has completed the design and development of the Site in accordance with the Site Specification, Visual Digital shall notify the Customer that the Site is ready to be tested and the Customer shall then have a period of 5 business days (the “Acceptance Period”) in which to complete a user test on the Site to ensure that the Site complies in all material respects with the Site Specification (the “Acceptance Test”).
5.2. The Customer is solely responsible for completing the Acceptance Test and Visual Digital shall not be liable for any losses incurred by the Customer as a result of the Customer’s failure to complete the Acceptance Test.
5.3. Subject to Clause 5.4 and Clause 5.5, acceptance of the Site by the Customer shall occur when the Customer notifies Visual Digital in writing that the Acceptance Test has been passed.
5.4. If any failure to pass the Acceptance Test results from a defect which is caused by an act or omission of the Customer, or by one of the Customer’s sub- contractors or agents for whom Visual Digital has no responsibility (a “Non-Supplier Defect”), the Site shall be deemed to have passed the Acceptance Test notwithstanding such Non-Supplier Defect. Visual Digital may at its sole election provide assistance to the Customer in order to remedy any Non-Supplier Defect by supplying additional services or products. The Customer shall pay Visual Digital in full for all such additional services and products at Visual Digital then current fees and prices.
5.5. Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
5.5.1. the Customer uses any part of the Site for any revenue earning purposes or to provide any services to third parties other than for test purposes; or
5.5.2. the Customer fails to complete the Acceptance Test within the Acceptance Period.
6. CHARGES AND PAYMENT
6.1. In consideration of the Services provided by Visual Digital to the Customer, the Customer shall pay to Visual Digital the fees and charges as set out in the Customer’s purchase order form and/or quotation. All fees and charges are exclusive of VAT which the Customer shall pay in addition to the fees and charges.
6.2. Visual Digital reserves the right at its sole discretion to:
6.2.1. require a non-refundable deposit (of 50% of the total invoice value inclusive of VAT – if applicable) to be paid by the Customer in advance of Visual Digital starting to provide the Services;
6.2.2. should Visual Digital elect to not commence with the provision of the Services and (if appropriate) to refund the deposit paid by the Customer in accordance with Clause 6.2.1.
6.3. In relation to the charges payable by the Customer for the design and development of the Site and the first Annual Hosting Fee (together the “Start-Up Fees”) where applicable, full payment (less any deposit paid by the Customer in accordance with Clause 6.2.1) shall be made within 5 business days of the acceptance or deemed acceptance of the Site by the Customer pursuant to Clause 5. The Customer’s Site will not be made live until full payment of the Start-Up Fees has been made by the Customer in accordance with this Clause 6.
6.4. In relation to the ongoing annual fees (where applicable) payable by the Customer for the hosting of the Site (“Annual Hosting Fee”), Visual Digital shall issue an annual invoice in advance, in respect of such Annual Hosting Fee (save for the first Annual Hosting Fee (where applicable) which shall be invoiced as part of the Start-Up Fees as set out in Clause 6.3 above).
6.5. The Customer shall pay each Annual Hosting Fee (where applicable) invoice submitted to it by Visual Digital, in full and in cleared funds, within 10 business days of the date of Visual Digital invoice. An alternative monthly payment option may also be available. Annual payments are not refunded in any way should the hosting be cancelled by the Customer.
6.6. If the Customer fails to pay any amount payable by it under this Agreement, Visual Digital shall be entitled, but not obliged, to:
6.6.1. charge the Customer interest on the overdue amount. Such interest shall be payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 8% per annum above the base rate for the time being of NatWest Bank. Such interest shall accrue on a daily basis and be compounded quarterly. Visual Digital reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
6.6.2. suspend all Services (including for the avoidance of doubt the suspension of the Site) without liability to the Customer until payment has been made in full. If the Customer’s Site is suspended in accordance with this sub-Clause and the Customer requests that the Site be reactivated, Visual Digital may charge the Customer a reactivation fee of £100.
6.7. Time for payment shall be of the essence of the Agreement.
7.1. Each of the parties warrants to the other that it has full power and authority to enter into and perform this Agreement.
7.2. Visual Digital shall perform the Services with reasonable care and skill.
7.3. Visual Digital warrants that the Site will perform in accordance with the Site Specification for a period of 3 months from the acceptance or deemed acceptance of the Site by the Customer pursuant to Clause 5. If the Site does not so perform, Visual Digital may its sole election, for no additional charge, carry out any work necessary in order to ensure
that the Site complies with the Site Specification.
7.4. The warranty set out in Clause 7.3 above shall not apply to the extent that any failure of the Site to perform substantially in accordance with the Site Specification is caused by any Material or Non-Supplier Defect or any alterations amendments or additions made by the Customer.
7.5. This Agreement sets out the full extent of Visual Digital obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this Agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded. In particular and without prejudice to that generality, Visual Digital shall not be liable to the Customer as a result of any viruses introduced or passed on to the Customer.
8. LIMITATION OF REMEDIES AND LIABILITY
8.1. Nothing in this Agreement shall operate to exclude or limit Visual Digital liability for death or personal injury caused by its negligence, or any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982, or fraud, or any other liability which cannot be excluded or limited under applicable law. 8.2. Visual Digital shall not be liable to the Customer for any damage to software, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity howsoever arising (including but not limited to loss arising directly or indirectly from a breach of this Agreement).
8.3. Visual Digital shall not be liable to the Customer for any or for any indirect, special or consequential loss or damage howsoever arising.
8.4. The Customer agrees that Visual Digital shall not be liable for:
8.4.1. any drop in position on Internet search engines resulting from non- implementation of any of Visual Digital recommendations, from any increase in competition, from changes implemented by the search engines or any other external influences on the position of the Customer on the Internet search engines;
8.4.2. the loss or corruption of any information and/or data during the transfer of the hosting and/or domain name from the Customer’s existing service provider to Visual Digital; 8.4.3. any loss of money paid to the Customer by end users via the Site as a result of problems with the payment processors (including Paypal) and/or the Customer’s and/or end-users bank.
8.4.4 Visual Digital will endeavour to ensure that any developed/designed site or application will function correctly on the server it is initially installed in and that it will function correctly when viewed with the latest version of Google Chrome and to an acceptable level with other browsers. Visual Digital can offer no guarantees of correct function with all browser software.
8.4.5 third party software or hardware and equipment working with either the website, hosting or email.
8.5. Visual Digital makes no warranties or representations that the Site will be
uninterrupted or error-free and Visual Digital shall not, in any event, be liable for
interruptions of Service or downtime of the Site.
8.6. Subject to Clause 8.1, Visual Digital aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this Agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the total fees and charges payable by the Customer to Visual Digital under this Agreement in that calendar year.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. The Customer shall indemnify Visual Digital against all damages, losses and expenses arising as a result of any allegation, action or claim that the Material or the Customer’s chosen Domain Name or business name infringe the Intellectual Property Rights of any third party.
10. SITE CONTENT
10.1. All Material to be included in the Site shall be incorporated by Visual Digital in one implementation during the design and development of the Site.
10.2. If the Customer requires Visual Digital to include additional Material, it shall notify Visual Digital of its requirements during the Acceptance Period. Any changes to the Material (which for the avoidance of doubt does not include any colour scheme or template changes) made during the Acceptance Period shall be made by Visual Digital without charge to Customer. All other changes shall be charged to the Customer on a time and materials basis at Visual Digital hourly rates from time to time.
10.3. Once the Acceptance Period has expired and/or the Site has been accepted by the Customer pursuant to Clause 5, any changes to the Site including changes to the Material shall be charged to the Customer on a time and materials basis at Visual Digital hourly rates from time to time.
10.4. In relation to bespoke websites, all design features (including colour scheme, images and structure) shall be agreed in writing between Visual Digital and the Customer prior to commencement of the Site build. Once the Site build has commenced, any Changes to such design features shall be charged to the Customer on a time and materials basis at Visual Digital hourly rates from time to time.
10.5. The Customer shall ensure that the Material does not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”).
10.6. The Customer has full responsibility for the content of the Site and acknowledges that Visual Digital has no control over any content placed on the Site by visitors and that Visual Digital does not purport to monitor the content of the Site. Visual Digital reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content.
10.7. The Customer shall indemnify Visual Digital against all damages, losses and expenses arising as a result of any action or claim that the Material or the content of the Site constitute Inappropriate Content.
10.8. Visual Digital may include the statement “Designed by Visual Digital ” on the home page of the
11. FORCE MAJEURE
11.1. In this Clause 11, “Force Majeure Event” means any event arising which is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war). 11.2. A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations
under this Agreement shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event.
12.1. Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by Clause 13.2.
12.2. Each party may disclose the other party’s confidential information: (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement provided that each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause
12 and (b) as may be required by law, court order or any governmental or regulatory authority.
12.3. No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Agreement.
12.4. The obligations of confidentiality in this Clause 13 shall not be affected by the expiry or termination of this Agreement.
13.1. Any communications between the parties about this Agreement shall be in
writing in the English language and shall be delivered by hand or sent by pre-paid first class post or sent by fax or email to:
13.1.1. (in case of communications to Visual Digital) to Visual Digital Ltd, Portsmouth Guildhall, Portsmouth, PO1 2AB or such changed address as shall be notified to the Customer by Visual Digital; or
13.1.2. (in the case of the communications to the Customer) to the registered office of the Customer (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Agreement or such other address as shall be notified to Visual Digital by the Customer.
13.2. Communications shall be deemed to have been received:
13.2.1. if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
13.2.2. if delivered by hand, on the day of delivery; or
13.2.3. if sent by fax or email on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
13.3. The provisions of this Clause 14 shall not apply to the services of any proceedings or other documents in any legal action.
The Customer may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of Visual Digital, such consent not to be unreasonably withheld or delayed.
15. ENTIRE AGREEMENT
15.1. It is acknowledged and agreed that this Agreement (including the documents and instruments referred to herein (the “Documents”) shall supersede all prior representations arrangements, understandings and agreements between the parties relating to the subject matter hereof and shall constitute the entire complete and exclusive agreement and understanding between the parties hereto
15.2. The parties irrevocably and unconditionally waive any right they may have to claim damages for any misrepresentation, arrangement, understanding or agreement not contained in the Documents or for any breach of any representation not contained in the Documents (unless such misrepresentation or representation was made fraudulently).
15.3. It is further acknowledged and agreed that no representations, arrangements, understandings or agreements (whether written or oral) made by or on behalf of any of the other parties have been relied upon other than those expressly set out or referred to in the Documents.
16. THIRD PARTY RIGHTS
This Agreement is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.
17. VARIATION AND WAIVER
17.1. A variation of this Agreement shall be in writing and signed by or on behalf
of both parties to this Agreement.
17.2. A waiver of any right under this Agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.
17.3. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
18.1. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
18.2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties. 19. GOVERNING LAW AND JURISDICTION
19.1. This Agreement and any disputes or claims arising out of or in connection
with its subject matter are governed by and construed in accordance with the law of England.
19.2. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement.
20. ADDITIONAL POINTS FOR WEBSITES WITH MAINTENANCE PLANS
20.1 The monthly maintenance is payable in advance. If any amounts are unpaid by the end of the month in which they are due then the website will be taken offline until all payments have been received. The monthly amount may be increased if the general hourly support amount is increased.
20.2 The one hour support time per month is non cumulative and any support over one hour is chargeable at Visual Digital hourly support rate.
20.3 The website may be hosted by Visual Digital, however the annual hosting fee and domain registration is payable by the customer. Where hosting is paid annually there is no refund if this is cancelled by the Customer.
20.4 Visual Digital will not be responsible for any damage or loss of revenue to any website which is caused by the updating of plugins. Although every care in making checks will be made before updating Visual Digital cannot be responsible for third party products and their interactions with existing software. Any work that has to be done to remedy any problems will occur an additional fee. This fee will be Visual Digital normal support fee per hour.