Definitions and Interpretations
“The Proposal” means a separate document giving details of the Services to be provided by the Company to the Client and their mutual obligations.
“The Project” means the Services and all other activities to be undertaken by the Company on behalf of the Client.
“The Contract” means an agreed and signed copy of the Proposal and these Terms and Conditions.
“The Company” means Digitalmakkr Limited of 946 Uxbridge Road, Hayes, Middlesex UB4 0RL.
“The Client” means a Company or individual to whom the Company is contracted to provide the Services.
“The Services” means the work and other activities to be undertaken by the Company during the period which the Company is contracted to provide Services to the Client.
“Intellectual Property” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, Services marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world as at the date of the Contract or in the future.
By accepting a Proposal or making use of the Services or making a payment of invoice to use the services supplied, the Client acknowledges to have read, understood, and agreed to these Terms and Conditions.
Unless the context otherwise admits, words importing one gender shall include all other genders and words importing the singular shall include the plural and vice versa.
Reference to any statutory provisions in this Contract shall include any statutory provisions, which amends or replaces it.
Outline of Contract
This document details the Terms and Conditions agreed between the Parties for the design and development of a Project, (including technical and design details) or a Service offered for the Client to be undertaken by the Company.
The order of precedence of the Contract documentation is:
These Terms and Conditions.
Detailed Project Specification
The Parties have agreed a detailed Project specification as defined in the Proposal.
Any amendments proposed to this Project specification must be made in writing and delivered to the other party. No changes to the Services will take place unless agreed by both parties where such agreement shall not be unreasonably withheld.
Any updates which are agreed to be undertaken by the Company in the Proposal including but not limited to text changes, image changes and video changes will be undertaken for a maximum of 5 working days unless expressly stated in the Clients Proposal, after which time they will become chargeable to the Client at our usual hourly rate.
If such proposed amendments incur additional expense the Company is entitled to seek further payment to cover such expense.
It is the Client’s responsibility to carry out any market research as to the viability and profitability of any Project before accepting any Quotation or Proposal as Digitalmakkr will not be held liable for anything deemed none commercially viable after the work has begun.
Fees and Payment
The Client will pay the agreed fees to the Company on delivery of the Project or in accordance with any payment schedule as detailed in the Proposal or the Project Specification.
The Company will invoice the Client and the Client will pay the invoice, including Value Added Tax (“VAT”) at the prevailing rate.
If the Client fails to provide the necessary content and as a result the Project is not completed within a 6 month time frame, the Company will require full payment for the agreed Project amount.
The Project will only continue once the Company receives all content required to complete the Project.
If the Company does not receive all content within a reasonable time frame of 12 months from the start date of the Project, we reserve the right to redevelop aspects of the Project which we deem to be obsolete, any costs incurred will be chargeable to the Client.
Payments may be made by BACS, cash, cheque, or (for overseas Client’s), Pound Sterling International Money Order or previously agreed electronic funds transfer. The Company reserves the right to charge the Client any fees encountered as a result of such transfer.
Payment shall, unless otherwise agreed in writing, be made in full without any deduction or set-off within 30 days of the date of the invoice, except COD (Cash on Delivery) or Pro-forma invoices, where immediate payment is required.
Returned cheques will incur an additional fee of £50.00 +VAT per returned cheque. The Company reserves the right to consider an account to be overdue in the event of a returned cheque. Interest shall be payable on overdue payments at the rate of 4% daily over HSBC Bank base rate to run from the due date for payment thereof until receipt by the Company of the full amount whether or not after judgement.
Where an account requires litigation to collect an overdue debt an administration fee of £2500.00 plus VAT at the prevailing rate will be payable.
Client’s whose accounts become overdue agree to pay the Company reasonable legal expenses and third party collection agency fees in the enforcement of these Terms and Conditions.
The Company shall be considered entitled to remove the Company’s’ and/or the Client’s material from any and all computer systems, until the amount due has been fully paid. This includes any and all unpaid monies due for Services, including, but not limited to, hosting, domain registration, search engine submission, design and maintenance, subcontractors, printers, photographers and libraries. Removal of such materials does not relieve the Client of their obligation to pay the due amount.
In accordance with Clause 4.1, the Company will require payment on the completion of development milestones where the Project involves considerable design and development time to implement. Such development milestones and the amount of payment for the completion of each milestone to be included within the Project specification as defined in the Proposal or if not specified in the Proposal to be agreed in writing by the parties prior to the commencement of the Project.
The Company reserves the right to decline further work on a Project if there are invoices outstanding with the Client.
If a percentage of the total quoted price is required as a deposit, as outlined in the Client Proposal, this must be received and cleared before Project commencement.
Any credit provided to the Client may be changed or withdrawn at any time.
The Company reserves the right to alter prices at any time without prior notice. If a Quotation or Proposal at an original price has been made it will be valid for 30 days and subsequently during the life of the current commission, however additional work may be charged using the new pricing structure. All Projects are subject to a minimum charge.
The Client will pay the expenses incurred by the Company during the Project, including travel to the offices of the Client where required, the purchase of consumables required for the Project and such other reasonable expenses directly related to the Project.
The Company will inform the Client in writing in advance if significant expenses not covered by the above clause that have to be incurred during the Project.
The Company will use its reasonable endeavours to ensure that the completed Project is delivered to the Client as outlined in the Proposal and / or detailed in the Project Specification.
If the Client requires the completed Project to be loaded onto a file server using File Transfer Protocol (“FTP”) the Company is entitled to make an additional reasonable charge for this service.
The Client is responsible for ensuring that the intended file server or disk space on the file server is properly configured.
The Company will not load the completed Project onto a publicly available file server or disk space on such a file server until full payment is made in full to the Company.
The Client may only use or publish the completed Project web site once full payment has been made to the Company.
The above notwithstanding, risk in the Project transfers upon delivery, however ownership transfers only upon payment of any and all sums due.
At Project acceptance the Company can provide an estimated completion date, however we cannot guarantee this date as a final completion date.
The Company reserves the right to refuse to provide a Proposal or construct a Project that they may judge as unfit due to content or otherwise.
Delivery of Content and Materials
The Client undertakes to deliver all the content and materials required for the Project and in the formats requested to the Company before commencement of the Project or at the milestones outlined in the Proposal.
Where this is not possible the Client will deliver such outstanding content and materials to the Company within 30 days of the start of the Project or milestone.
The Client will notify the Company in writing as soon as practicably possible of any delays in delivering content and materials required for the Project and provide the Company with a revised timetable for supplying such content and materials.
The Company will not be responsible for any delays, missed Project milestones or additional expenses incurred due to the late delivery or non-delivery of content and materials by the Client where required by the Company for the Project.
Content Management Systems / Open Source Framework
As standard practice, the Company works with modern open source frameworks, namely WordPress and Magento, for the majority of our developments.
The Company reserves the right to utilise premium themes, plugins and or external open source applications to improve the Project and help towards completion.
The client understands and agrees that if plugins are required they are open for updates which are not monitored nor maintained by the Company without prior Contract.
The client understands and agrees that plugins are designed by the open source market meaning support may be required from external sources to that of the Company, which in turn can delay the Project out of the Company’s control.
Any notice given by either of the parties under this Contract shall be served on the other party and addressed to that party’s signatory by email, personal delivery, pre-paid recorded delivery or first-class post to the receiving party as set out in this clause.
Any such notice shall be deemed to be effectively served as follows:
In the case of service by pre-paid recorded delivery or first-class post 48 hours after posting; or
In the case of service by email on the next working day.
Both parties shall keep confidential the specific terms of the Project and not disclose them save to such employees or contractors as need to know the relevant information for the purposes of performing the Project.
The parties agree that all information marked “Confidential”, or where not marked it is reasonable to judge such information as confidential, shall not be disclosed at any time during the Project or for a minimum period of 2 years after the completion of the Project, except where such disclosure is required by law or by order of a court in the jurisdiction of England.
The parties further agree that all information marked as a “Trade Secret” and reasonably judged to constitute a Trade Secret shall not be disclosed at any time during or after the expiry of this Contract, except where such disclosure is required by law or by order of a court in the jurisdiction of England.
Confidential information and Trade Secrets shall consist of, but not necessarily be limited to: technical, commercial, financial, operational, marketing or promotional information or data.
Credits and Publicity
Subject to the Confidentiality clause above, the Client shall be able to refer to their working relationship with the Company for press and publicity purposes after receiving the written approval of the Company regarding the content of any such material.
Subject to Clause 10.1 above, the Client agrees to allow the Company to place websites and other designs, along with a link to the Client’s site on the Company’s own website for demonstration purposes and to use any designs in its own publicity.
Intellectual Property Rights
The Client undertakes to secure all copyright and any other appropriate licenses, clearance or consents where required for the content and materials to be incorporated into the Project by the Company.
The Client grants to the Company for the term of the Project a non-exclusive, revocable, royalty-free license to use its Intellectual Property for the purposes of creating the Project.
Neither party shall make any claim to the other party’s content, materials or services during or after the expiry of this Contract.
Neither party shall make any claim to the other party’s trademarks or register or cause to be registered or apply for a materially similar trademark or imitation of a trademark during or after the expiry of this Contract.
Neither party shall register or cause to be registered any company name materially similar to that of the other party.
The copyright for all material provided by the Company, such as source code, graphics, photographs video, animation and text, will remain the property of the Company until such time as payment has been made in full where upon they will become the property of the Client.
If a choice of design is presented, only one solution is deemed to be given by the Company as fulfilling the contract. All other designs remain the property of the Company, unless agreed in writing that this arrangement has been changed.
Design Sign Off
Once you have signed off your design, we will not deviate from this in any way during or after the build. Any changes requested after sign off will be chargeable at our hourly rate, please make sure you are 100% happy when signing off your design and have asked any questions you may have.
Web Site Development
The Company cannot guarantee the availability of any domain name. Where the Company is to register a domain name on behalf of a Client it will endeavour to do so but the Client should not assume a successful registration.
Neither party shall register or cause to be registered any domain name materially similar to that of the other party except where the Client specifically requests that the Company register domain names similar to that of the Client’s on behalf of the Client in order to prevent their registration and use by third parties. In this case all reasonable fees and expenses incurred in registration of such domain names shall be payable by the Client as part of the Project cost.
The Client agrees that a web page built from a graphic design may not exactly match the original design because of the difference between the display in design software and the rendering of the code by internet browser software. The Company will endeavour to try and match the design as closely as is possible when building the code.
The Company shall make every effort to ensure sites are designed to be viewed by the majority of visitors. The Client understands that websites are designed to work on a range of browsers including Internet Explorer (10 and above), Mozilla Firefox, Safari and Google Chrome on the most up-to-date “stable” release(s).
Websites may be tested with older browsers to ensure compatibility where specified by the Client before work commences. The Client understands and agrees that the Company cannot guarantee correct functionality or design with all browsers, browser software and across different operating systems and/or devices.
The Client will link from the Client’s completed Project web site homepage to the Company’s homepage by way of a logo or graphic image as supplied by the Company or alternatively by way of a text hyperlink in the form, “(service provided) by Digitalmakkr” or similar words. Such link will appear at the foot of the Project web site pages and/or homepage.
Once web design and development is complete, the Company will provide the Client with the opportunity to review the resulting work. The Company will make one set of minor changes at no extra cost within 14 days of the start of the page. It does not include changes to images, colour schemes or any navigation features. Any minor changes can be notified to the Company by email.
The Client undertakes not to materially alter or diminish the design and function of the Project web site without the prior written consent of the Company.
The Company reserves the right to choose the best development platform for the Client and the Company, ranging from bespoke design and build, to open source web builders.
If the Client has a preferred platform that is not disclosed at the point of sale, and strongly wishes to deviate from the platform selected by the Company, then the Client understands and agrees that further development costs will be billed to the Client in order to achieve the Client’s wishes.
If the Client does not disclose all of the desired functionality to the Company, which causes the Company to choose a platform that may not be able to achieve the actual functionality, the Client understands and agrees that the Client will be billed for any development cost required to modify or change the platform in order to fulfil the Clients wishes.
After site completion, the Client may wish to edit their web site themselves to make updates via their Content Management System (where such a system is included in the Proposal). However, the Client understands and agrees that in so doing they assume full responsibility for any issues which occur as a result of changing the website themselves.
If a client or a third party of their choosing edits the web site and this results in functionality errors or the page displaying incorrectly, then the Company reserves the right to quote for work to repair the web site.
The Company grants the Client a non-exclusive license to use the underlying code used to create the Project.
The Client shall not alter the coding of the Project web site or any other coding carried out as part of the Project with a view to creating a separate web site or licensing the Project web site to a third party without the prior written consent of the Company.
The Company may from time to time recommend to the Client that updates are needed to their site to comply with, including but not limited to, new / revised legislation, software releases and web standards. The Company reserves the right to quote for any updates as separate work.
The Client understands and agrees that the Company is not liable for any failure to inform or implement these updates to their site.
The Client understands and agrees that it shall defend, indemnify, save and hold the Company harmless from any and all demands, liabilities, costs, losses and claims arising from omission to inform or implement these updates.
Where the Company undertakes Search Engine Optimisation (“SEO”), the Client understands and agrees that due to the infinite number of considerations that search engines use when determining a site’s ranking, the Company cannot guarantee any particular placement; and that acceptance by any search engine cannot be guaranteed and when a site is accepted, the time it takes to appear in search results varies from one search engine to another. Rankings will also vary as new sites are added.
Any website hosting offered by the Company as part of a Project or in isolation is subject to the Company’s Website Hosting Contract Terms and Conditions. Full Terms and Conditions are available on the Company’s website hosting page.
The Company will provide 5 business days of support from launch date as standard with all Projects developed.
This support Contract covers problems which may arise after Project completion where the original specification has not been met or the Project is not functioning as agreed by both the Client and the Company previously.
This support Contract does not cover fundamental changes and/or deviation from the original specification including but not limited to image edits, changes in functionality and text.
If the Client has caused issues through misuse of their CMS during this support period, the Company reserves the right to charge for support at the Company’s discretion and usual hourly rate.
After the support period has expired support will be chargeable including any errors and issues which take developers time to investigate. The Company will charge a standard 1 hour fee at standard rate to investigate the issue before supplying the Client with an estimate for the time needed for the work to be completed and the associated cost. The Client is not obliged to proceed with any charges.
The Client confirms and warrants that to the best of their knowledge and belief that the content and materials supplied by the Client for the purposes of the Project are not blasphemous, defamatory or obscene and do not breach any applicable law or regulation.
Where the Client intends to re-sell the outcomes of the Project, and where the Company agrees to such a transaction, the Client understands, agrees and warrants that these Terms and Conditions will apply to that transaction to the exclusion of all others.
Both Parties and the signatories to the Contract warrant that they are authorised and permitted to enter into the Contract, and have obtained all necessary permissions and approvals.
Both parties warrant and undertake that they are not aware as at the date of the Contract of anything within their reasonable control which might or will adversely affect their ability to fulfil the obligations under the Contract.
Indemnities and Limitation of Liability
Neither party shall be liable to the other under this Contract in contract, tort, or otherwise (including negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise for any loss of business, contracts, profits or anticipated savings or for any indirect or consequential or loss whatsoever.
The Client agrees to indemnify the Company against any claims, damages, losses, costs and expenses which the Company may sustain or incur in relation to any content and materials which the Client provides, such indemnity applying in respect of any claims for any breach of applicable law or regulation or any infringement of any intellectual property rights.
The Client acknowledges that it is for the Client to ensure that the resulting Project does not infringe the laws of any jurisdiction within which it is actively promoted.
The Company agrees to indemnify the Client against any claims, damages, losses, costs and expenses which the Client may sustain or incur in relation to breaches of the Confidentiality and Intellectual Property Rights clauses of this Contract committed knowingly by the Company.
Nothing in this Contract shall exclude or limit liability for death or personal injury resulting from the negligence of either party or their servants, agents or employees.
Either party may terminate this Contract immediately in the event that:
Either party commits a serious, grave or material breach or persistent breaches of this Contract including non performance, default or neglect of its duties, responsibilities and obligations under this Contract, and
Such breach remains unremedied for a period of 30 days from written notice given by the other party specifying the breach and requiring its remedy; or
Such breach is not capable of remedy.
Furthermore this Contract may be terminated in the event that:
Either party is unable to pay or has no reasonable prospects of paying their debts the amount or aggregate amount of which equals or exceeds the bankruptcy level within the meaning of the Insolvency Act 1986, or
Being a company becomes subject to an administration order or goes into liquidation, (other than for the purpose of amalgamation or reconstruction), or
Has a receiver appointed to administer any of its property or assets, or
Makes any voluntary Contract or enters into a compromise for the benefit of its creditors, or
Fails to make payment in accordance with the terms of this Contract.
Upon termination of this Contract:
Any completed parts of the Project already delivered to the Client or test examples of the Project not already paid for by the Client will be returned to the Company. Furthermore the Client shall not retain any copies of the returned Project, parts thereof or test examples of the Project;
The following shall become immediately due:
Any and all outstanding invoices;
Any costs accrued up to termination date not already subject to invoice;
Any costs incurred by the Company upon termination of the contract.
Any termination of this Contract shall be without prejudice to any rights accrued in favour of either party in respect of any breach committed prior to the date of (or giving rise to) such termination and to those provisions of this Contract which are by their construction intended to survive such termination (including, without limitation, the Confidentiality and Intellectual Property Rights clauses and this clause).
Neither party may assign or otherwise transfer this Contract or any rights, duties and obligations hereunder without the prior consent in writing of the other party.
Neither party shall be liable for delay or failure to perform any obligation under this Contract if the delay or failure is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil disorder or industrial dispute.
If such delay or failure continues for a period of at least 30 days, the party not subject to the force majeure shall be entitled to terminate this Contract by notice in writing to the other.
Joint Venture or Partnership
Nothing in this Contract shall be construed as creating a partnership, joint venture or an agency relationship between the parties and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party.
The Client undertakes during the Project development period and for a period of twelve months after its completion not to directly or indirectly solicit or induce any of the Company’s employees to leave the employment of the Company whether to work on a freelance or consultancy basis or to be directly employed by the Client.
The Client agrees to allow the Company all necessary access to computer systems, servers and other locations, as required, in order to complete a Project and until all due funds are cleared, including the necessary read/ write permissions, usernames and passwords.
The Client agrees to allow the Company access to any computer systems, usernames and passwords required to remove material, data and/or sites for failure to comply with these Terms and Conditions.
Failure by either party to enforce any accrued rights under this Contract is not to be taken as or deemed to be a waiver of those rights unless the waiving party acknowledges the waiver in writing.
It is hereby declared that the foregoing paragraphs, sub-paragraphs and clauses of this Contract shall be read and construed independently of each other.
Should any part of this Contract or its paragraphs, sub-paragraphs or clauses be found invalid it shall not affect the remaining paragraphs, sub-paragraphs and clauses.
No addition to or modification of any clause in this Contract shall be binding on the parties unless made by a written instrument and signed by the signatories to this Contract or their duly authorised representatives.
This Contract sets out the entire Contract and understanding of the parties and is in substitution of any previous written or oral Contracts between the parties.
Further to Clause 14.1 and 14.2, after completion of the Client’s Project, the Company provides 5 business days of technical support as standard (provided the Project brief has not been met), after this support period has expired all technical support will be chargeable to the Client at our usual hourly rate. “Technical Support” refers to help with website Projects only, and is not extended to email support,
Further to Clause 3.2, any changes to the Project outside the scope of the original agreed proposal are chargeable. After the technical support period has ended, all changes to the Project are chargeable.
This Contract shall be interpreted construed and enforced in accordance with the laws of England and Wales.
The parties irrevocably agree to submit to the exclusive jurisdiction of the courts of England over any claim or matter arising under or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
If at any time any question, dispute or difference whatsoever shall arise as to the formation, meaning, operation, validity or effect of the Contract or the rights, duties or liabilities of the parties under or by virtue of it or otherwise or any other matter in any way connected with or arising out of the subject matter of the Contract, either party may give to the other notice in writing of the existence of such question, dispute or difference and the same shall be referred to a mutually agreed Third Party Mediator within 14 days of such notice.
If an attempt at Mediation as in Clause 25 should fail then the dispute or difference shall be referred to the arbitration of a single arbitrator to be agreed upon by the parties within 14 days of the failure of such an attempt, or in default of such agreement, to be nominated by the President for the time being of the Law Society of England and Wales such arbitration to be conducted in accordance with the Arbitration Act 1996.
The headings in these Terms and Conditions are for convenience only and are not intended to have any legal effect.
Third Party Rights
A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.