Terms and Conditions
These Terms and Conditions (the “Terms”) apply to the services to be provided by Cariad Marketing Limited (the “Agency”) to the Client, as detailed in the Website Quote and Order Form (the “Order”). These Terms and the Order together constitute the “Contract” between the Agency and the Client (collectively the “parties”).
1.1. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision. 1.2. Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. 1.3. A reference to writing or written includes email.
2.1. Any purchase or use of the products and services provided by the Agency implies that the Client has read and accepted these Terms. It is not necessary for the Client to have provided in writing a signed acceptance of these Terms for them to apply. 2.2. When commencing with the Order, the Client will be deemed to have satisfied themselves as to the conditions applying and have accepted these Terms in full. 2.3. The Client will only be entitled to reject the works because they don’t comply with the Order or are defective in material and workmanship.
3.1. The Client appoints the Agency to provide the services described in the Order. The services shall be performed subject to and in accordance with the provisions of the Contract. 3.2. The Agency shall use all reasonable endeavours to meet any agreed performance dates. 3.3. The Agency warrants to the Client that the services will be provided using reasonable care and skill.
4.1. The Contract shall apply from the date of placement of the Order and shall continue in full force until completion of the services as agreed. 4.2. Upon termination of the Contract, the Client shall promptly pay all outstanding fees and reimburse the Agency for any costs properly incurred by the Agency in the course of performing the services and to which it is committed at the time of termination. 4.3. Without affecting any other right or remedy available to it, the Agency may terminate this Contract with immediate effect if the Client does not provide the Agency with information, authorisation, permission or assistance as required for the performance of the services within 21 days of requesting it. 4.4. Without affecting any other right or remedy available to it, the Agency may terminate this Contract with immediate effect if any payment due has not been paid by the due date for that payment, unless otherwise agreed.
5. FEES AND REMUNERATION
5.1. In consideration of the performance of the services provided by the Agency, as set out in the Order, the Client shall pay the Agency a non-refundable deposit of 50% of the total order value upon placement of the Order. The final 50% is then due on completion of the website. 5.2. The Agency may charge additional fees in the event of delays caused by the Client, including failure to provide such information, materials, instructions, media or approvals, as are reasonably required for the supply of the works, appropriately and/or on time. 5.3. The Agency also reserve the right to make additional charges in the event of changes to the cost of labour, materials, services and other conditions outside of the Agency’s reasonable control, or if the Client require the supply of additional or varied works, goods and services in addition from those described in the quote to which these terms apply. 5.4. The Client shall pay all invoices submitted by the Agency in full within 14 days of the date of the invoice to the bank account nominated in writing by the Agency. 5.5. If the Client is overdue with any payment hereunder, then without prejudice to the Agency’s other rights or remedies: a) the Client shall be liable to pay interest on the overdue amount at a rate of 4% a year above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the date on which payment becomes overdue until the date the Agency receives payment of the full overdue amount together with any accrued interest; b) the Agency shall have the right, at its option, to suspend performance of the services until the Client pays all outstanding payments in full; and c) the Agency shall also be entitled to charge a one-off administration payment of £25 or 5% of the invoice value; whichever is the greater, on any overdue payment. Any additional reasonable costs incurred in the collection of such overdue payments will also be payable in full.
6. OUT-OF-HOURS ASSISTANCE
6.1. Client websites are managed within the Agency’s usual business hours, which are 09.00am – 05.30pm, Monday to Friday. If out-of-hours assistance is required, this must be arranged by explicit agreement and within the scope of the Contract. Any assistance provided out-of-hours shall be calculated in accordance with the Agency’s hourly rate of £100+vat and will be chargeable to the Client in addition to the fees set out in clause 5.
7. CLIENT’S OBLIGATIONS
7.1. The Client shall provide the Agency with such information and materials as the Agency may reasonably require for its performance of the services, and ensure that such information is complete and accurate in all material respects. 7.2. The Client hereby warrants and undertakes that: a) it has full power and authority to enter into the Contract and that by doing so it will not be in breach of any obligation to a third party; b) it shall in connection with the Contract, and the information and materials provided shall, comply with all applicable laws, regulations and any applicable codes of practice, and it shall take appropriate steps to verify such compliance; c) the use of information and materials provided will not infringe the rights (including the Intellectual Property Rights and Privacy Rights) of any third party; and d) it shall comply with any third party policies applicable to the services that the Agency notifies the Client of from time to time. 7.3. The Client hereby indemnifies and keeps the Agency indemnified against all losses, claims, liabilities, damages, costs and expenses suffered or incurred by the Agency as a result of any breach of the above warranties and undertakings. 7.4. The Client agrees to inform the Agency without delay if it considers that any claim or description in any of the information and materials placed by the Agency on behalf of the Client is false or misleading in any way. 7.5. The Client shall review the works provided by the Agency and shall notify the Agency if any change or alteration to the works is required. Any changes or alterations shall be agreed between the parties in writing.
8. INTELLECTUAL PROPERTY
8.1. The Client hereby grants the Agency and other third party suppliers engaged in the provision of the services a non-exclusive, non-transferable royalty-free licence during the term of the Contract to use the information and materials provided by the Client in connection with the Contract. 8.2. The Client acknowledges and agrees that all Intellectual Property Rights in the Agency’s materials (for example the advertising copy, website design, and any other materials described in the Order or which may be created or provided by the Agency in the provision of the services under this Contract) shall immediately upon creation vest in and shall be and remain the exclusive property of the Agency. 8.3. Upon receiving payment of all fees due for the Agency’s materials intended to be assigned, the Agency shall assign the Intellectual Property Rights owned by the Agency to the Client. Some of the Agency’s systems use open source code released under GPL (General Public Licence), copyright in this is cannot be ‘owned’ or sold. The Agency does not sell these systems to the Client, they are configured for the Client. 8.4. The Agency shall retain the right to mention this project by name, display graphics, including web content, as examples of the Agency’s work in their portfolio and as content features in other projects, and in connection with the marketing and promotion of their services.
9. LIMITATIONS OF LIABILITY
9.1. Nothing in the Contract shall exclude or limit liability for fraud or fraudulent misrepresentation, death or personal injury caused by negligence, or any other type of liability to the extent it may not be excluded or limited as a matter of law. 9.2. To the maximum extent permitted by law, the Agency accepts no liability for any of the following: a) any business losses, such as loss of profits, income, revenue, anticipated savings, business, contracts, goodwill or commercial opportunities; b) loss or corruption of any data, database or software; or c) any special, indirect or consequential loss or damage.
10. DATA PROTECTION
10.1. Each party shall comply with the obligations imposed on it by applicable data protection legislation with regard to the personal data processed by it in connection with the services.
11.1. Both parties hereby covenant that they shall not, without the prior written consent of the other party, during the term of the Contract and for a period of 12 months following its termination or expiration, attempt to solicit or employ or otherwise facilitate the employment or engagement of any person employed by the other party.
12. FORCE MAJEURE
12.1. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
13.1. It is recognised that during the course of business confidential information, including that in relation to its business, web content, new products and designs, will be communicated to the Agency by the Client and vice versa. Each party undertakes to maintain the confidentiality of the other party’s confidential information and only use such confidential information in the performance of its obligations under the Contract. Both parties shall instruct all employees that they have an obligation to ensure confidentiality of such information at all times. It is agreed that this obligation of confidentiality shall continue after termination.
14. ENTIRE AGREEMENT
14.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.1. Except as set out in these Terms, no variation of the Contract shall be effective unless it is agreed in writing by the parties.
16.1. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17.1. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deemed deleted the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
18.1. Any notices given under or in connection with the Contract shall be in writing and shall be sent to the address of the parties, as provided in the Order. Any such notice may be delivered by hand, first class post or email, and shall be deemed to have been served when delivered if by hand, the next business day after posting if by first class post, and at the time of transmission if by email. 18.2. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
19. THIRD PARTY RIGHTS
19.1. A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. 19.2. The Agency may occasionally employ a Third Party Contractor to carry out some or all of any work which the Client has instructed the Agency to carry out. The Agency shall invoice the Client for any charges incurred for works carried out by a Third Party Contractor. 19.3. At its own expense each party shall use all reasonable endeavours to procure that any necessary third party shall promptly execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Contract.
20. GOVERNING LAW AND JURISDICTION
20.1. The construction, validity and performance of the Contract shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales to resolve any dispute between them arising under or in connection with the Contract.
Cariad Marketing Ltd develop WordPress responsive websites which are hosted with a third party supplier, Nimbus Hosting. Their terms are as follows. Our aim is to provide the best service we can to all our customers, to help us achieve this goal we have set out the following terms of service.
All services provided by Cariad Marketing Ltd may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any United Kingdom (or any other country) law is prohibited. This includes, but is not limited to: copyrighted material, material that is threatening or obscene, material that is “adult only” content, or material protected by trade secrets and other statute. The subscriber agrees to indemnify and hold harmless Cariad Marketing Ltd from any claims resulting from the use of the service which damages the subscriber or any other party.
2. Adult material
Pornography is prohibited on our web servers. This includes sexual content, or direct links to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to our servers or any other server on the Internet. Links to such materials are also prohibited. Cariad Marketing Ltd will be the sole arbiter as to what constitutes a violation of this policy.
3. Intellectual property rights
Material and systems accessible to you through Cariad Marketing Ltd’s online systems may be subject to protection under United Kingdom (or any other country) copyright laws, or laws protecting trademarks, trade secrets or proprietary information. Except when expressly permitted by the owner of such rights, you must not use the Cariad Marketing Ltd service in a manner that would infringe, violate, dilute or misappropriate any such rights, with respect to any material, which you access or receive through the Cariad Marketing Ltd or our Hosting partner’s network. If you use a domain name in connection with our service or similar service, you must not use that domain name in violation of any trademark, service mark, or similar rights of any third party.
4. Network security
Customers may not use, or allow to be used; Cariad Marketing Ltd or our Hosting partners networks or systems in an attempt to circumvent user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for the customer, logging into a server or account the customer is not expressly authorized to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organization’s security policy. Customers may not attempt to interfere or deny service to any user, host, or network. This includes, but is not limited to, flooding, mail bombing, or other deliberate attempts to overload or crash a host or network. We will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations. Users who violate system or network security may incur criminal or civil liability.
Defamatory speech distributed over the Internet can result in civil liability for the defamer.
6. Spam or unsolicited email
You must not use, or allow to be used, Cariad Marketing Ltd or our Hosting Partner’s networks for the sending of spam, flames, mail bombs, or unsolicited email messages. Your domain may not be referenced as originator, intermediary, or reply-to address in any of the above. This prohibition extends to the sending of unsolicited mass mailings from another service that in any way implicates web sites hosted on our Network. A message is considered unsolicited if it is posted in violation of a newsgroup charter or if it is sent to a recipient who has not requested or invited the message. For purposes of this provision, merely making one’s email address accessible to the public will not constitute a request or invitation to receive messages. If you are found to have spammed we reserve the right to disable your account without warning. Cariad Marketing Ltd reserves the right to determine what violates this policy. As such, any violation may result in cancellation of services without refund.
You will use appropriate forms and processes provided to report issues, request support or make changes to your service. Date and time of a request will be the time it is logged electronically, therefore email or online submissions may be processed faster than telephone requests.
You shall indemnify us and keep us indemnified and hold us harmless from and against any breach by you of these terms of business and any claim brought against us by a third party resulting from the provision of services by us to you and your use of the services and the server including, without limitation, all claims, actions, proceedings, losses, liabilities, damages, costs, expenses (including reasonable legal costs and expenses), howsoever suffered or incurred by us in consequences of your breach or non-observance of any of the terms of this agreement.
Cariad Marketing Ltd will not be responsible for any damages your business may suffer. Cariad Marketing Ltd makes no warranties of any kind, expressed or implied for services we provide. Cariad Marketing Ltd disclaims any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by Cariad Marketing Ltd and its employees. Cariad Marketing Ltd makes no “uptime” guarantees. Cariad Marketing Ltd perform backups of hosting accounts on a regular basis however they come with no guarantee unless formally agreed otherwise. Cariad Marketing Ltd can accept no responsibility for any loss of data or consequences arising from this. Cariad Marketing Ltd always advises clients to back up their data to their own satisfaction. All communications (emails, verbal or written) are between Cariad Marketing Ltd and the client. These communications are private and are therefore not to be shared with any other parties. Cariad Marketing Ltd wishes to emphasise that in accepting Hosting services, customers indemnify Cariad Marketing Ltd and its Hosting Partner for the violation of any law or policy that results in loss to Cariad Marketing Ltd or the bringing of any claim against Cariad Marketing Ltd. This means that if Cariad Marketing Ltd is sued because of activities of the customer that violate any law, or this policy, the customer will pay any damages awarded against Cariad Marketing Ltd, plus costs and reasonable legal fees.