All work done for our clients is subject to our standard Terms and
Conditions, which are outlined below.
IMPORTANT: This agreement sets
out the terms on which iolo communications ("the
Company") is prepared to provide services to you
("the Client")
"Fees" means the charge for the provision of the
Services as set out in the Project Proposal or such other charge as is
otherwise agreed from time to time between the parties.
"Intellectual Property" means all copyrights, moral
rights, related rights, patents, trade marks, trade names, service marks,
design rights, database rights, semi-conductor rights, rights to domain names,
and other similar intellectual property rights (whether registered or not) and
applications for such rights as may exist anywhere in the world whether in
relation to the services, production, design, any logos or artwork or any
software or source codes originated by the Company.
"Materials" means all materials, software, manual and
other documentation (where the content allows) developed or supplied pursuant
to the Agreement in each case in machine and/or human readable form.
"Project Proposal" means the document provided by the
Company (if any) setting out the proposal for the Services to be provided to
the Client by the Company.
“Estimate” means quotations or letter of quotation.
“Consultancy” means services that include Marketing, Public
Relations, Promotion and Media-buying. These services are subject to our policy
concerning notice periods as laid out in section 9, clause 2.
"Services" means the concept, design, production and
delivery of the Project in accordance with the specifications set out in the
Project Proposal or as otherwise agreed from time to time between the parties.
"Site" means the Client's web site
"Software" means all software (including all HTML,
JavaScript, Visual Basic, Java, VBScript, Transact-SQL, SQL and any other
system) affecting the performance or use of the site, whether or not written by
the Company (all preparatory design materials, modifications, updates and
enhancements to it) required for the purpose of this Agreement.
"Timetable" means the timetable set out in the Project
Proposal or as otherwise agreed from time to time between the parties.
1.1 Words denoting the masculine gender include the feminine and
neuter and vice versa and words denoting the singular include the plural and
vice versa.
1.2 The headings in the this Agreement are for
convenience only and shall not affect interpretation.
1.3 Unless otherwise agreed
in writing by the parties, the term of this Agreement will commence on the date
specified in the Schedule. The Client’s approval for work to commence shall be
deemed a contractual agreement between the Client and the Company.
2.1 The Company will deliver the Services and Materials and
provide to the Client any other services agreed in writing from time to time
between the parties and use its best endeavours to ensure that these are
delivered and provided in accordance with the Timetable.
5.1 All estimates are based on
the Company’s current costs and, unless otherwise agreed, are subject to
amendment on or at any time after acceptance to meet any rise or fall in such
costs.
5.2 The Company reserves the right to charge the
amount of any Value Added Tax payable whether or not included on the estimate
or invoice.
6.1 The Client shall pay the Company the Fees.
6.2 All sums due shall be paid on receipt of invoice (on condition
that, where applicable, a valid VAT invoice has been delivered). In situations
where payment is not received, the Company will immediately suspend all
services/work until the outstanding debt is cleared.
6.3 Within 14 days of acceptance of the Project Proposal by the
Client the Client shall pay to the Company a non-refundable deposit, normally
40% of the total estimated cost of the project.
6.4 The Company will not undertake any work on the Services until
it has received the deposit required under clause 6.3 above.
6.5 The Company reserves the right to increase the Fees if changes
to the Services are required by the Client which depart from the original
Project Proposal or any instruction given by the Client to the Company.
6.6 If the Client cancels this Agreement at any time before the
completion of the Services the Client shall pay (a) any fees that would have
been charged by the Company to that date including standard period notice costs
as detailed in section 9, clause 2 and (b) any payments the Company has made or
has contracted to make or liabilities incurred to any third parties in relation
to the Project or the Client.
6.7 Interest on overdue invoices shall accrue from the date when
payment becomes due from day to day until the date of payment at a rate of 4%
above the Bank of England base rate from time to time in force and shall accrue
at such a rate after as well as before any judgement. Failure to raise an
invoice in respect of interest shall not be deemed to constitute a waiver of
our rights to recover interest.
6.8 The Company will use its best endeavours to produce designs
and materials that substantially meet the Client's specifications. If the
Client rejects designs produced according to those specifications for aesthetic
reasons or if the Client changes their original specifications in light of the
work produced, the Company reserves the right to charge extra for redoing the
work.
6.9 All work may be submitted for the Client’s approval and the
Company shall incur no liability for any errors not corrected by the customer
in works so submitted. Client’s alterations and additional proofs necessitated
thereby shall be charged extra. When content, style, type or layout is left to
the Company judgement, changes there from made by the Client shall be charged
extra. No responsibility will be accepted for differences between proofs and
work supplied to the Client where the methods of production differ.
7.1 Each party agrees: to keep all information about the other's
business ("Confidential Information") strictly confidential, not to
use or copy Confidential Information save as agreed in writing with the other
party; and to procure that all persons to whom it discloses Confidential
Information are bound by the terms of confidentiality at least equivalent to
this.
7.2 This clause 7 shall not apply to either
party in relation to information that (other than by breach of any duty of
confidence) has come into the public domain; is obtained from a third party or
was already known to that party before the Agreement; or is required to be
disclosed by order of a court of competent jurisdiction.
8.1 The Client shall have sole title and ownership of all
Intellectual Property Rights previously held by the Client and all Intellectual
Property Rights created or developed by themselves. The Company shall have sole
title and ownership of all Intellectual Property Rights created or developed by
the Company in the provision of the Services or contained in any of the
Materials.
8.2 The Company will grant to the Client, once all Fees have been
paid, a non-exclusive royalty free licence to use the Intellectual Property in
connection with the Project. This licence is personal to the Client and cannot
be assigned or transferred to any person (including, for the avoidance of
doubt, any group, company or associate of the Client) without the prior written
consent of the Company.
8.3 The Client hereby irrevocably and unconditionally indemnifies
and shall hold fully indemnified the Company from and against any and all
actions, proceedings, losses, damages, liabilities, obligations, costs, claims,
charges and expenses suffered by the Company of whatsoever nature arising out
of or in connection with the Company's use of any materials supplied to it by
the Client in the course of its performance of its obligations relating to the
execution of the Project (in the case of websites, including but not limited to
any related copyrights, trade secrets, trade names, patents, intellectual
property rights or obscenity laws in any country of jurisdiction in which the
content of the site can be reviewed or retrieved).
8.4 The Client hereby grants the Company an irrevocable licence to
use images or extracts from the Project for promotional purposes for the
Company and on its own website together if suitable a link to the Customer's
site.
8.5 It is a condition of this agreement (and has been taken into
account in assessing the Fees) that the Company will be credited as the project
creator, if requested by the Company.
9 Term
9.1 iolo Communications may terminate this Agreement without
notice if the client is in breach of a material term or condition and fails to
remedy a remediable breach within 30 days of receipt of a written notice to do
so specifying the nature of the breach. Termination of a contract of agreement,
are subject to the standard term of notice as detailed section 9, clause 2
9.2 A term’s notice means notice given not later than the first day of the
quarter year period preceding the quarter year to which the notice relates. In
cases where notice is not given, the appropriate sum in lieu of notice will
become due and owing to iolo Communications as a debt on the first day of the
quarter year cover, which would have been the final term of provision if a
quarter year notice had been given.
9.3 Either party may terminate this Agreement in the event that
the other convenes a meeting of its creditors (or if a proposal is made for any
composition, scheme or arrangement for the benefit of creditors); becomes
unable to pay its debts as and when they fall due determined; commits an act of
bankruptcy or if a trustee, receiver or administrative receiver is appointed in
respect of all or part of its business or assets; or has a petition presented
against it for the purpose of considering a resolution or other steps are taken
for the winding up of the other party (other than for the purposes of solvent
amalgamation or reconstruction).
9.4 The rights and obligations of the Company and the Client
contained in clauses 7 and 8 shall survive any termination of this Agreement.
Termination of this Agreement shall be without prejudice to any rights which
have accrued to either party prior to termination.
10 Limitation of Liability
10.1 Except for express undertakings to indemnify and
any warranties set out in this Agreement:
a) To the extent permitted by the law, IOLO Communications expressly excludes
all conditions and warranties whether express or implied.
b) Notwithstanding any other provision in this Agreement, in no event will IOLO
Communications be liable to any party including the Client for any indirect,
punitive, special, incidental or consequential damage in connection with or
arising out of this Agreement (including for loss of profits, use, data, or
other economic advantage), however it arises, whether for breach of this
Agreement or in tort, and even if IOLO Communications has been previously
advised of the possibility of such damage. Further, liability for such damages
shall be excluded, even if inclusive remedies provided hereunder fail their
essential purpose. The Client will indemnify IOLO Communications and keep it
indemnified from and against any claims by any third party for or in respect of
such damages.
10.2 Certain provisions relating to the trading of goods and services and other
statutes, rules and regulations in [Your Country] may imply certain
non-excludable warranties or conditions. To the extent that they are not permitted
to be excluded, IOLO Communications' liability for breach of such conditions or
warranties and the Client's sole and exclusive remedy in relation to such
breaches shall be limited to:
a) in the case of Products or software or other goods supplied by IOLO
Communications, at IOLO Communications' option:
i) the replacement or repair of those Products or software or goods, or the
supply of equivalent goods; or
ii) the payment of the cost of replacing or repairing the Products or software
or goods or of acquiring equivalent goods; and/or
b) in the case of Services, at IOLO Communications' option:
i) supplying the Services again; or
ii) the payment of the cost of having the Services supplied again.
10.3 The Client is solely responsible for the proper backup and protection of
all of its software and data, as well as the implementation and maintenance of
firewalls and security measures (including proper virus control) in relation to
the Facilities.
11 Force Majeure
11.1 Though every effort will be made to carry out the contract
the Company shall be under no liability if it shall be unable to carry out any
provision of the Agreement for any reason beyond its control including (without
limiting the foregoing) Act of God, war, strike, lockout or any other labour
dispute, fire, flood, drought, failure of power supply, legislation, failure of
third parties to supply software, design work or other materials or facilities
or other cause beyond the control of the Company. During the continuance of such
a contingency the Client may by written notice to the Company elect to
terminate the Agreement and pay for Services rendered and Materials used, but
subject thereto shall otherwise accept delivery when available.
12 General
12.1 If any provision of the Agreement is held invalid, illegal or
unenforceable for any reason, such provision shall be severed and the remainder
of the provisions hereof shall continue in full force and effect as if this
Agreement had been executed with the invalid provision eliminated. In the event
of there being any invalidity so fundamental as to prevent the accomplishment
of the purpose of this Agreement, the parties shall immediately commence good
faith negotiation to remedy such invalidity.
12.2 The Customer may not assign any of its obligations under this
Agreement without the prior written consent of IOLO Communications. However
IOLO Communications may arrange for subcontractors to perform any of IOLO
Communications' obligations under this Agreement.
12.3 IOLO Communications will not be liable to
the Client or to any third party for any non-performance or delay in the
performance of its obligations under this Agreement, if events or conditions
beyond its reasonable control cause the non-performance or delay and IOLO
Communications gives the Client prompt notice thereof. In no event will this
provision affect the Client's obligation to make payments to IOLO
Communications under this Agreement except in respect of Services that are
unable to be performed by IOLO Communications, until they can be performed.
12.4 The Client undertakes that it will not during the term of
this agreement and for 12 months after completion of the Services or earlier
termination of this agreement in accordance with clause 9 hereof (whichever is
the later) either alone or in conjunction with or on behalf of any other
person, directly or indirectly seek to entice away, solicit or engage any
person who was during the term of this agreement an employee or consultant of
the Company or was otherwise engaged by the Company and was involved in any way
in the provision of the Services. Whilst both the Client and the Company agree
that this restriction is reasonable in all the circumstances it is agreed that
if a court of competent jurisdiction considers that the restriction is invalid
but would have been valid if either the period or its scope were reduced then
the restriction will continue to apply with such limitation or limitations
necessary to enable its validity.
12.5 The failure by either party to enforce at any time or for any
period any one or more of the terms and conditions of this Agreement shall not
be a waiver of them or of the right at any time subsequently to enforce all
terms and conditions of this Agreement.
12.6 This Agreement is subject to English law and to the exclusive
jurisdiction of the English courts.
13 Special conditions
13.1 Travelling time to and from customer premises is
not generally included in our estimate. IOLO Communications reserve the right
to make a charge for travelling time at our normal consultancy rates. Likewise
IOLO Communications reserve the right to charge for travelling expenses based
on 45p per mile.
(No charge will be made for travelling time or expenses incurred before the
approval for work to commence.).
14 Warranty
14.1 Any errors in the Project due to work carried out under this
agreement will be corrected immediately during 30 days after the Project is
signed off.
14.2 After the 30 day warranty period the Client may expect to
receive basic technical support by phone or email. If the level of support
required is high the Company reserves the right to charge for it.
15 Web Services
15.1 IOLO Communications will provide Services to the Client and
will be entitled to charge the Client for such Services at the rates specified
in the Schedule.
15.2 IOLO Communications shall be entitled to provide the Services remotely
from its own premises and will not be required to attend the Client's premises.
If IOLO Communications is required to attend the Client's premises for any reason
pursuant to this Agreement, the Client will reimburse IOLO Communications for
reasonable transport and/or accommodation expenses incurred by IOLO
Communications in doing so.
15.3 The Client authorises IOLO Communications to obtain access to
the Client's computing facilities referred to in the Schedule (the
"Facilities") using the remote means of access referred to in the
Schedule ("Means of Access") and subject to any Restrictions on
Access set out in the Schedule, for the purposes of providing the Client with
Services.
15.4 IOLO Communications will not use the Means of Access (or any other methods
of remote access) to access the Facilities for any purpose other than to
provide the Services. However, IOLO Communications shall be permitted to gain
remote access to the Facilities for lawful purposes using any publicly
available means (such as the World Wide Web), which do not require special
authorization.
15.5 IOLO Communications will take the following steps to ensure the security
of the Facilities (insofar as the use of IOLO Communications' systems and the
Means of Access are concerned):
i) ensuring that no passwords are stored in easily recognisable form on IOLO
Communications' own systems in circumstances where a breach of IOLO
Communications' own internal security may reveal them;
ii) ensuring that only those employees and contractors of IOLO Communications
who are required to access the Facilities using IOLO Communications' systems
and the Means of Access are able to do so;
iii) ensuring that the Facilities are not capable of being accessed by a system
or user, which transits IOLO Communications' own systems, except as permitted
by this Agreement.
15.6 The Client indemnifies IOLO Communications against any loss or damage
arising directly or indirectly from any unauthorised use of the Facilities to
which IOLO Communications has been granted remote access, provided that such
unauthorised use has not arisen as the result of any material breach by IOLO
Communications of its own obligations under Clause 15.5 of this Agreement.
15.7 The Client will also reimburse IOLO Communications for all expenses
incurred by IOLO Communications on the Client's behalf or in carrying out its
obligations under this Agreement.
15.8 The Client will pay IOLO Communications for the cost of any Products
(including any licensing that IOLO Communications is required to pay to obtain
a sub-license in favour of the Client for any third party Materials) together
with IOLO Communications' own charge that it levies for handling and/or
obtaining any relevant sub-licenses
16 Hosting
16.1 The Company reserves the right to
sub-contract hosting services and may change this sub-contractor without giving
notice. The Company does not guarantee continuous service and will accept no
liability for loss of service, whatever the cause. The Company may change the
type of hosting account used for clients whose site uses an unusually high
level of bandwidth. If additional fees become payable, the Company will give
the Client 30 days notice. The Company will not guarantee to host any site that
causes detriment to the operation of any other sites or systems.
16.2 Terms of service
The Company provides World Wide Web page hosting. The Company reserves the
right to suspend or cancel a Client's access to any or all services provided by
the Company when the Company decides that the account has been inappropriately
used or otherwise.
16.3 Domain Names
The registration or obtaining of any domain name for the Client shall be
subject always to the relevant terms and conditions of the relevant registrar
and shall be subject to any third party claims there may be in respect of
trademark, copyright, and/or passing off and the Client acknowledges and
warrants that it has made all investigations and considered any competing claim
there may be to or in respect of the name by third parties whether in the UK or
elsewhere. Domain names registered on the Client’s behalf
are at no time the property of the Client. Upon registration of a domain name
the Client acquires the right to use the domain name for the period agreed but
does not hold title to it. Where IOLO Communications have registered the domain
name on the Client’s behalf this domain name will be registered to IOLO
Communications. IOLO agree to transfer this domain to the Client or his/her
agent when asked to do so providing that all accounts have been settled.
16.4 Server use
Personal accounts are to be used by the primary owner only. Personal account
holders are not permitted to resell, store or give away web-hosting services of
their website to other parties. Web hosting services are defined as allowing a
separate, third party to host content on the owner's web site. Exceptions to
this include ad banners, classified ads, and personal ads.
The Company reserves the right to refuse service and /or access to
its servers to anyone.
16.5 The Company does not allow any of the following content to be
stored on its servers:
Illegal Material - This includes copyrighted
works, commercial audio, video, or music files, and any material in violation
of any Federal, State or Local regulation.
Adult Material - Includes all pornography,
erotic images, or otherwise lewd or obscene content. The designation of
"adult material" is left entirely to the discretion of the Company.
Warez - Includes pirated software, ROMS,
emulators, phreaking, hacking, password cracking. IP spoofing, etc., and
encrypting of any of the above. Also includes any sites which provide
"links to" or "how to" information about such material.
16.6 Payment policies
All accounts are set up on a prepay basis. Although the Company reserves the
right to change prices of accounts or services at any time all pricing is
guaranteed for the period of prepayment. Payment is due each anniversary year
or month following the date the account was established.
In situations where
payment is not received the Company will immediately suspend all services until
the outstanding debt is cleared. The Client is responsible for all money owed
on the account from the time it was established to the time that the Client
sends a written cancellation request.
Payments are to be made
by cheque or telegraphic transfer in UK sterling.
16.7 Cancellation and
refunds
The Company reserves the right to cancel the hosting service at any time. In
this event customers will be entitled to a pro rata refund based upon the
remaining period of membership. If a customer contravenes The Company' terms of
service a refund will not be issued in the event of a cancellation.
Clients may cancel
their hosting account with 30 days notice. Any incentives or special
arrangements offered to the Client when opening the account will also be
cancelled. Clients may be given the option to purchase services which were
offered as start-up incentives in the result of a cancellation.
Fees charged on a
prepay basis are non-refundable. In addition some accounts incur set-up fees,
these charges are also non-refundable.
16.8 Indemnification
The Client agrees that it shall defend, indemnify, save and hold the Company
harmless from any and all demands, liabilities, losses, costs and claims,
including reasonable legal fees asserted against the Company, its agents, its
customers, officers and employees, that may arise or result from any service
provided or performed or agreed to be performed or any product sold by the
Client, its agents, employees or assigns. Client agrees to defend, indemnify
and hold harmless the Company against liabilities arising out of; (1) any
injury to person or property caused by any products sold or otherwise
distributed in connection with the Company' server; (2) any material supplied
by customer infringing or allegedly infringing on the proprietary rights of a
third party; (3) copyright infringement and (4) any defective products sold to
customer from the Company's server.
16.9 Disclaimer
The Company will not be responsible for any damages your business may suffer.
The Company makes no warranties of any kind, expressed or implied for services
we provide. The Company disclaims any warranty or merchantability or fitness
for a particular purpose. The includes loss of data resulting from delays,
non-deliveries, wrong delivery, and any and all service interruptions caused by
the Company and its employees.
The Company reserves the right to revise its policies at any time.