DIGITAL PAINT – TERMS OF BUSINESS
1.1 “We”, “us”, “our”, “ourselves” – Digital Paint Limited
1.2 “You”, “your”, “yourself” – refers to our customer
1.3 “goods” – includes materials and media in both tangible and intangible form
1.4 “services” – includes the supply of goods
1.5 “this agreement” – means the contract between you and us
1.6 “the Work” – means the services we are to perform as set out in our proposal and such additional services as we may agree to perform for you
2.1 perform the Work with reasonable care and within a reasonable timescale according to the nature and extent of the Work. Time is not of the essence nor is it capable of being made of the essence, even if you have made known to us a specific purpose or event for which you require the Work. Any timescales we give you are indicative only, do not amount to a legal obligation and are dependent upon your co-operation as and when we require it;
2.2 inform you when in our view the Work is practically complete: save in the absence of good faith on our part, that determination shall be binding;
2.2 correct for you free of charge any error in the Work that becomes manifest within 60 days of completion of it;
2.3 use reasonable endeavors to obtain for you the benefit of any specific warranty given by the manufacturer of any goods or the provider of any services used in connection with the Work.
2.4 grant to you, in so far as we are legally able to do so, an irrevocable worldwide license to use for any lawful purpose connected with your business any copyright materials and other intellectual property we may create for the sole purpose of performing the Work. That license will take effect only when we have received payment of the full price for the Work.
- give us all such information, instructions, authorisations, payments on account and assistance within a timeframe as agreed at the commencement of the project or otherwise 2 weeks, that we require in order to perform the Work and to enable us to progress it to completion without avoidable delay. In default, you will on demand reimburse to us without any deduction all additional costs and liabilities we incur and any losses we may suffer as a result of that default. You warrant the truth of the information you provide;
- designate a specific person to represent you in your dealings with us and in ours with you, such person to be our sole point of contact with you in relation to the Work;
- pay us such percentage of the quoted price as we may specify on acceptance of our proposal and before we commence any part of the Work: you agree that this is not refundable once we have started on the Work;
- pay us the balance of the quoted price for the Work plus any additional charges for extra work, variations, costs of delivery of goods and materials to your premises, travel and subsistence expenses and VAT as appropriate (together, “the full price”), without any deduction whatsoever, in cleared funds on the due date. The due date shall be the date or dates agreed between you and us and in default of agreement shall be seven days following delivery to you of our invoice. In no circumstances will you be entitled to withhold any sum for any reason including (but not limited to) legal or equitable set off or counterclaim;
- pay us on demand our charges for renewal fees or other recurring charges and in any event prior to our having to pay any third party fees or charges connected with them;
- pay us simple interest at 8% over the base rate of the Bank of England on all outstanding amounts from the due date for payment until actual payment, calculated on a daily basis. This does not prevent us from taking other steps to enforce payment or exercise any lien we may have over any goods if full payment is not received by the due date.
- A reconnection fee of £50.00 (excluding VAT) is payable should we suspend your services through non-payment of invoices following the issue of our standard Seven Day letter warning of this action.
- pay us any Third Party costs involved in the recovery of any outstanding amounts plus any additional costs incurred in collection which will be added to the outstanding amount and will continue to accrue interest until the full payment is received.
- obtain any necessary permissions and pay any fees for the reproduction of images that you require us to use in the course of the Work;
- be solely responsible and liable for the content of any website that forms part of the Work;
- indemnify us fully for all our losses, costs and expenses resulting from any infringement of any rights of any third party or from damage suffered by any third party and which, in either case, arises from the creation, use, possession or ownership of the Work;
- give us at least two months’ prior notice in writing prior to the annual renewal date if you wish to cancel any annually recurring service we may provide. These include but are not limited to Hosting Provision, Domain Name Renewal, E Mail Provision and Maintenance Contracts.
- not entice any employee or supplier of ours to carry out any work for you, directly or indirectly, similar to any of the services which we provide, without our prior written consent. Without prejudice to any other remedy we may have, if you are in breach of this clause, you will pay to us as liquidated damages a fee for the introduction of that person. In the case of a person employed by you, that fee shall be calculated as 20% of the gross remuneration including benefits payable in the first year of employment. In the case of a supplier engaged by you, that fee shall be calculated as 20% of the gross value of the services performed by that person in the first year of engagement.
- Other Agreements
- These terms and conditions prevail over any that you may put forward, unless we specifically accept the latter in writing.
- Our proposal contains only a high-level specification of the Work. If you require a detailed specification you will pay our additional charges, in such amount as we shall determine, for this service.
- If you wish to request any change to any part of any specification you will confirm this in writing to us. We shall not be obliged to proceed with any such change unless and until you have agreed our additional charges, if any, for that change.
- Our work in designing and creating your website is a whole project and is not divisible between the front and back end functions in either time or money. However, we shall be entitled to charge you a reasonable sum, such amount to be in our absolute discretion (but taking account of the non-refundable payment under clause 3.2), for all work carried out if this agreement is terminated prior to practical completion of the Work.
- We may terminate this agreement or the provision of any service if any payment due to us has not been paid by the due date for that payment or if you fail to provide any information, instruction, authorization, permission or assistance which we require from you or you to obtain in order to enable us to complete the Work is not provided within the timeframe given in Section 3.1 or within 21 days of our giving to you formal notice to provide it.
- Without prejudice to clause 4.5, we may increase the price for the Work if you fail to provide any item referred to in that clause or if any information you give us proves to be untrue and in either case extra work is required on our part as a result.
- The implied terms set out in the Sale of Goods Act 1979 sections 12 to 15 inclusive and the Supply of Goods and Services Act 1982, sections 2 to 5 and 13 to 15 inclusive (or any statutory replacement or modification of any of them) are excluded.
- We will not release goods to you until you have paid the full price. In the meantime we shall have a lien over them until the full price has been paid. If, nevertheless, we do release goods to you we retain title to them until such time as you have paid the full price.
- We shall own and there shall be transferred to us as may be necessary all intellectual property rights created in connection with the Work or as a result of it. We shall also retain sole and exclusive rights to any underlying software applications used at any time for the purpose of or in connection with the Work.
- You will not rely on and we shall not be liable for any advice we may give during the course of the Work.
- The total of our liability in contract, tort, breach of statutory duty or otherwise shall not exceed the full price for the Work.
- We shall not be liable for any default of any third party whose services we engage in connection with the Work if we have identified the fact of their engagement to you.
- We shall not be liable under any circumstances for indirect, incidental or consequential losses, including (but not limited to) loss of business or profit, loss of information, business interruption or downtime. You are advised to take out your own insurance against these and similar risks.
- No third party may enforce any term of this agreement.
- No variation in the agreement shall be valid unless it is in writing and signed by a director or principal of both parties.
- These terms of business, with the information set out in the proposal, comprise the entire agreement between you and us. You agree that you have not relied upon any representations or promises other than those contained in this document.
- Either party may cancel the agreement if the other ceases to trade or becomes subject to a petition for bankruptcy or winding up or to administrative receivership or initiates proposals for a voluntary arrangement but without prejudice to our right to charge for the Work.
- Notices may be served at the addresses for the parties set out in our proposal unless and until any party notifies the other of another address for service.
- This agreement is to be construed in accordance with English law and any dispute between the parties shall be subject to the exclusive jurisdiction of the English court.
Digital Paint does not back up your data or website and whilst every attempt would be made in the unlikely event of any corruption or hardware failure, we cannot guarantee to be able to replace lost data. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all Service interruptions caused by our hosting provision.
Digital Paint makes no warranties or representations that any Service will be uninterrupted or error-free. You accept all Services provided hereunder “as is” without warranty of any kind.
So far as permitted by law and particularly in respect of non-consumers, all implied conditions, warranties and terms (whether express or implied by statute, common law, custom or otherwise) including, but not limited to, those relating to the exercise of reasonable care and skill, fitness for purpose and satisfactory quality (where applicable) are hereby excluded in relation to each of the Services to be provided hereunder to the fullest extent permitted by law.
For the avoidance of doubt, any use of the Services and/or any Package in the course of conducting business shall give rise to you being a non-consumer and the provisions of this Agreement affecting the statutory consumer protection you would otherwise be afforded as a consumer shall not apply.
- Service and Maintenance SLA’s (Service Level Agreements)
For customers who have a maintenance agreement we offer a monitored email service outside of normal office hours and a dedicated phone number for Technical Enquiries. We also work to an agreed SLA (Service Level Agreement) for issue resolution:
Minor – Resolved within 24 hours
Major – Resolved within the same day (8 hours)
Critical – Resolved as quickly as possible and as a priority
For customers who do not have a maintenance agreement and the website is more than 18 months old we have a Technical Support email address. All emails received will be looked at during normal working hours, or if sent outside of work hours, then the following day and we will respond with a price and a start and completion date. Our standard price is £60.00 for a minimum of 1 hour’s work.
Digital Paint shall not be liable for any loss or damage of whatsoever nature suffered by You arising out of or in connection with any breach of this Agreement by You or any act, misrepresentation, error or omission made by You or on Your behalf.
Digital Paint will not be liable for any indirect loss, consequential loss, loss of profit, revenue, data or goodwill howsoever arising suffered by You or for any wasted management time or failure to make anticipated savings or liability You incur to any third party arising in any way in connection with this Agreement or otherwise whether or not such loss has been discussed by the parties pre-contract or for any account for profit, costs or expenses arising from such damage or loss.
No matter how many claims are made and whatever the basis of such claims, Digital Paints’ maximum aggregate liability to You under or in connection with this Agreement in respect of any direct loss (or any other loss to the extent that such loss is not excluded by other provisions in this Agreement) whether such claim arises in contract or in tort shall not exceed a sum equal to the fees paid by You for the Services in relation to which Your claim arises during the 12 month period prior to such claim.
None of the clauses herein shall apply so as to restrict liability for death or personal injury resulting from the negligence of Digital Paint, its employees or its sub-contractors.
Digital Paint shall not be liable for any interruptions to the Services or outages arising directly or indirectly from:-
- interruptions to the flow of data to or from the internet;
- changes, updates or repairs to the network or software which it uses as a platform to provide the Services;
- the effects of the failure or interruption of Services provided by third parties;
- factors outside of Digital Paints’ reasonable control, such as Viral attacks, or other malicious programs added by third parties;
- Your actions or omissions (including, without limitation, breach of Your obligations set out in the Agreement) or those of any third parties;
- problems with Your equipment and/or third party equipment;
- interruptions to the Services requested by You