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 Blue Penguin Design ("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.
"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 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 therefrom 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 Either party may terminate this Agreement without notice if
the other 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.
9.2 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).
9.3 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, Blue
Penguin Design expressly excludes all
conditions and warranties whether express or implied.
b) Notwithstanding any other provision in this Agreement, in no event will Blue Penguin Design 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 Blue Penguin Design
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 Blue Penguin Design
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, Blue
Penguin Design’s 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 Blue Penguin Design, at Blue Penguin Design’s
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 Blue
Penguin Design’s option:
i) supplying the Services again; or
ii) the payment of the cost of having the Services supplied again.
10.3 The Customer 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 Blue Penguin Design. However Blue Penguin Design may
arrange for subcontractors to perform any of Blue Penguin Design’s
obligations under this Agreement.
12.3 Blue Penguin Design
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 Blue
Penguin Design gives the Client prompt
notice thereof. In no event will this provision affect the Client's obligation
to make payments to Blue Penguin Design
under this Agreement except in respect of Services that are unable
to be performed by Blue Penguin Design,
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. Blue
Penguin Design reserve the right to
make a charge for travelling time at our normal consultancy rates. Likewise Blue Penguin Design 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 Blue Penguin Design
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 Blue Penguin Design
shall be entitled to provide the Services remotely from its own
premises and will not be required to attend the Client's premises. If Blue Penguin Design is
required to attend the Client's premises for any reason pursuant to this
Agreement, the Client will reimburse Blue
Penguin Design for reasonable
transport and/or accommodation expenses incurred by Blue Penguin Design in
doing so.
15.3 The Client authorises Blue
Penguin Design 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 Blue Penguin Design
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, Blue Penguin Design
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 Blue Penguin Design
will take the following steps to ensure the security of the
Facilities (insofar as the use of Blue
Penguin Design’s systems and the Means
of Access are concerned):
i) ensuring that no passwords are stored in easily recognisable form on Blue Penguin Design’s
own systems in circumstances where a breach of Blue Penguin Design’s
own internal security may reveal them;
ii) ensuring that only those employees and contractors of Blue Penguin Design who
are required to access the Facilities using Blue Penguin Design’s
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 Blue Penguin Design’s
systems, except as permitted by this Agreement.
15.6 The Client indemnifies Blue
Penguin Design against any loss or
damage arising directly or indirectly from any unauthorised use of the
Facilities to which Blue Penguin Design
has been granted remote access, provided that such unauthorised
use has not arisen as the result of any material breach by Blue Penguin Design of
its own obligations under Clause 15.5 of this Agreement.
15.7 The Client will also reimburse Blue
Penguin Design for all expenses
incurred by Blue Penguin Design
on the Client's behalf or in carrying out its obligations under
this Agreement.
15.8 The Client will pay Blue
Penguin Design for the cost of any
Products (including any licensing that Blue
Penguin Design is required to pay to obtain a
sub-license in favour of the Client for any third party Materials) together
with Blue Penguin Design’s
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 Blue
Penguin Design have registered the
domain name on the Client’s behalf this domain name will be registered to Blue Penguin Design. Blue Penguin Design 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
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.