Elucidos

Rev 11 - 25 August 2009

Elucidos - Terms and Conditions

These terms and conditions apply to a client (the "Client") who commissions Elucidos (the "Service Provider") to provide services as set out below and in accompanying schedules where relevant:

• 2. Design, creation and/or maintenance of a website for the Client
• 3. Review of an existing website belonging to the Client
• 4. Marketing, internet marketing strategy and consultancy
• 5. Hosting and hosting management for the Client’s website
• 6. Integration of Website operation/information into the Client’s administrative systems
• 7. Search engine services and internet marketing support
• 8. Data Backup Service

The engagement is subject to the quote and any specific letter accompanying it signed by both the Client and an authorised employee of the Service Provider, and to the terms and conditions of the Service Provider as set out in this document. The terms and conditions may be varied by the quote and the accompanying letter described above. These Terms and Conditions are effective from the date of signature, or the date the first payment is received, whichever is earlier.

The Service Provider reserves the right, at any time, to modify, alter or update these Terms and Conditions and will inform the Client of any such changes by email. The Client agrees to be bound by such modifications, alterations or updates. 

1. Generally, for any service commissioned by the Client:

1.1. The Service Provider agrees to keep the business affairs and information of the Client confidential except where necessary for the execution of their services for the Client, authorised as part of the publication of the Client’s website or by legal requirements.

1.2. The Client undertakes to provide the Service Provider with all information and assistance reasonably required for the completion of the agreed tasks, including overall business objectives and objectives for the Client’s website including costs, time scales and required functionality, plus any relevant legal requirements, pictures, photographs, logos, artwork, product and service information, personnel and business background information, including instructions required by third parties to exectute prerequisite tasks.

Information and images intended for inclusion in a website should normally be provided in digital format by email, existing internet files or CD-Rom. Any additional cost arising where the information has to be created or converted to digital format by the Service Provider will be agreed with the Client beforehand. If digital information is supplied in a non-standard format, the Client will be responsible for the Service Provider’s reasonable costs of conversion to a usable format.

If the Client does not provide the above required content, information, text and images to the Service Provider within a one month timescale from the order date, or a period mutually agreed with the Service Provider, then the Service Provider reserves the right to charge the Client for the time spent on the client’s project at up to a rate of £100 per hour plus a project cancellation charge of up to 50% of the remaining fees due under the orders then current.

1.3. All intellectual property rights in materials provided by the Client for its website remains the Client’s property. Subject to this, all intellectual property rights in software, design work or any other materials provided to the Client pursuant to this agreement remain the property of the Service Provider.

1.4. Where the Service Provider provides services on an ongoing or continuous basis, the Service Provider will provide the Client with one month’s notice of termination, or of any changes to relevant prices and conditions.

1.5. Notwithstanding clause 1.4, the Service Provider may terminate the agreement with the Client at any time:

a. should the Client fail to make a due payment within 14 days of being notified that a due payment has not been made,

b. should the Client go into liquidation or have a receiver/administrative receiver appointed over any of its assets,

c. if the Client is in breach of any term of this agreement and the breach is incapable of remedy or, if the breach is remediable, it continues for a period of 14 days after written notice requiring the breach to be remedied has been given to the Client

d. if, in the Service Provider’ s sole opinion, the Client is using the Service Provider services in a way likely to damage or bring disrepute onto the Service Provider and the Client does not immediately desist from this use on written notice from the Service Provider to this effect.

In the event of any of the above terminations, the Service Provider reserves the right to charge the Client for the time spent on the client’s project at up to a rate of £100 per hour plus a project cancellation charge of up to 50% of the remaining fees due under the orders then current.

1.6. The Client may cancel the project at any time for any reason, with the exception stated in clause 7.10. In the event of cancellation, the Service Provider reserves the right to charge the Client for the time spent on the client’s project at a rate of up to £100 per hour plus a project cancellation charge of up to 50% of the remaining fees due under the orders then current.

1.7. Payment of the Service Provider services will be within 14 days of invoice unless explicitly agreed otherwise in writing by the Service Provider. The Service Provider reserves the right to claim statutory interest at 2% per month (26.8% APR) at the date the debt becomes overdue in accordance with the UK Late Payment of Commercial Debts (Interest) Act 1998. Payment will be made by direct bank transfer in pounds sterling or in euro. Payment by any other method may incur an additional administration fee.

1.8. The Service Provider may provide any service by means of third parties at its sole discretion. Where the Service Provider contacts third parties for any reason in the normal course of bidding for, arranging, undertaking or fulfilling the Client’s work requirements, the Client accepts unconditionally that the Service Provider will not be liable for any loss or damage incurred by the Client, whether direct or indirect (including, without limitation, loss of profit) and whether arising in contract, tort or otherwise.
 
1.9. The Service Provider will take every reasonable care to ensure freedom from errors of any work undertaken for the Client. The Client warrants the understanding and acceptance that, as it is not possible to guarantee computer software products are absolutely error free, the Client accepts unconditionally that the Service Provider do not warrant that a website or other software (or any part of it) is error free or that use of it will be uninterrupted and that the Service Provider will not be liable for any loss or damage incurred by the Client, whether direct or indirect (including, without limitation, loss of profit) and whether arising in contract, tort or otherwise.

1.10. The Service Provider will take reasonable care to ensure its assessments and recommendations are soundly based and aimed at completing the agreed tasks to a professional standard. Where the Client undertakes actions following recommendations from the Service Provider the Client accepts that responsibility for any subsequent outcomes from this remains with the Client.

1.11. The Client may agree additional work at any stage with the Service Provider. This may be subject to additional fees as agreed at the time. The terms and conditions as outlined here will apply to the additional work unless explicitly varied by agreement between the two parties.

1.12. Where the Service Provider offers links to other sites, the Service Provider does not accept any responsibility for the content of those sites, the owners of which do not necessarily have any link, commercial or otherwise, with the Service Provider

1.13. If the Service Provider suspends the hosting or other internet services for the purpose of maintenance, improvement or repair or if there is any failure of or fault in the provision of the internet services for any reason not in the immediate, direct control of the Service Provider, the Service Provider will not be liable for any loss or damage incurred by the Client, whether direct or indirect (including, without limitation, loss of profit) and whether arising in contract, tort or otherwise.

1.14. Subject to clauses 1.9 and 1.13, the Service Provider’s liability for any damages (including, without limitation, damages for loss of profits) arising in contract, tort or otherwise, resulting in any way from this agreement shall be limited, in aggregate over the entire period of the agreement, to the total amount paid by the Client to the Service Provider.

1.15. Nothing in these terms and conditions is to be interpreted as an attempt to limit or exclude the Service Provider’s legal liability for any personal injury resulting from the Service Provider’s negligence or to affect the Client’s statutory rights.

1.16. The Client agrees to indemnify the Service Provider and will keep the Service Provider fully indemnified against all loss, damage, costs, claims and expenses arising in any way from any service or product offered or provided to, via or concerning the Client’s web site and marketing and support programmes and/or any breach of the terms and conditions set out in this document or associated documents.

1.17. Each provision in this agreement limiting or excluding liability operates separately and the invalidity or unenforceability of any provision will not affect the validity or enforceability of any other provision.

1.18. This agreement is governed by and construed in accordance with English law. The Service Provider seeks to clarify carefully and fully in these Terms and Conditions the obligations of the Service Provider and its clients for the provision of the Service Provider's services. These Terms and Conditions stand accordingly in lieu of the terms of the UK Sale of Goods Act 1979.

1.19. The Service Provider reserves the right to alter these Terms and Conditions from time to time. By continuing to accept services from the Service Provider after being notified by e-mail or otherwise of the altered Terms and Conditions the Client will be deemed to be bound by the altered Terms and Conditions.

1.20. All amendments to this agreement, as well as any other assurances or arrangements, must be made in writing. Any agreement made on behalf of the Service Provider by its representatives or agents shall only be binding if agreed in writing by the Service Provider.

1.21 The Client agrees to be included in the Service Provider's communication lists (including email, SMS and post) for the purposes of updates on products and services provided by or through the Service Provider. The Client may opt out of any such communication by simple request at any time.

2. Design, creation and/or maintenance of a website (the "Website") for the Client:

2.1. The Client commissions the Service Provider to provide maintenance, or to design and create a Website to meet the agreed business needs of the Client and to submit the design and completed website for the Client’s approval.

2.2. The Website design fee or any outstanding part of it will be due in full on completion of the Website or agreed stages. The Client undertakes to pay the Service Provider the agreed design fee promptly on approval of the completed Website or agreed staged development and on the submission of the associated invoice. The Client agrees not to unreasonably withhold approval of the design, staged development or completed Website.

2.3. The design of the Website remains the property of the Service Provider and the Service Provider may use any aspect of the site design or coding for other clients. The Client may adopt aspects of the design in other media including print with the permission of the Service Provider which will not be unreasonably withheld.

2.4. The Client agrees that the Service Provider may use the created/modified Website as a publically quoted reference site for the Service Provider and will not unreasonably withhold permission for this. The Client agrees to maintain a clearly visible link to the Service Provider's website, as specified by the Service Provider, on the home page of the Website. The link text will be designated by the Service Provider, and may be similar but not restricted to "Web Design by [Service Provider's Trading Name]", in the appropriate language, for the duration of the Website's presence on the Internet. From time-to-time, the Service Provider may request modifications to this link or the link text, and these will not be unreasonably refused and will be conducted within a reasonable time by the Client, or the Client may instead provide such access as is necessary for the Service Provider to make the modifications.

2.5. Upon completion of a new Website, the Client is not restricted to engaging the Service Provider to undertake site maintenance and amendment. This may be undertaken by the Client or a third party engaged by the Client, notwithstanding clause 7.7.

2.6 The cost for any images or icons requested by the Client in addition to the images and icons provided in the basic design shall be borne by the Client and will be included as an item in the final invoice presented by the Service Provider.

5. Hosting and hosting management for the Client’s website:

5.1. The Client commissions the Service Provider to establish hosting services for the Client’s website.

5.2. The arrangement can be terminated by either party on one month’s notice in writing. In the case of termination by the Client, no refund will be made for any remaining months of hosting already paid.

5.3. The Client agrees to pay the agreed fees promptly annually, 30 days in advance of the renewal date by cheque, direct debit or standing order as agreed mutually between the two parties. Failure to renew and pay for the hosting service by the annual renewal date may lead to the immediate suspension of the hosting service by the Service Provider, without additional notice to the Client. The Service Provider will endeavour to provide a renewal notice by email at least one month before the renewal date, but failure to do so or failure of the email being received by the Client will not limit the Client's responsibility to pay the renewal fee, as stated above.

5.4. The Service Provider quoted hosting fees apply to the initial 12 month period. Where it becomes necessary to increase these in subsequent years, the Service Provider will provide at least one months notice of any proposed increase, by email.

5.5. The Client agrees to take adequate measures to ensure their website or any system operated or provided by the Service Provider is not used for transmission of computer viruses, any material that is obscene, defamatory, abusive, indecent, or illegal, nor used in a manner creating a violation or infringement of the rights of any person, firm, company or other entity.

5.6. The Service Provider reserves the right to suspend the hosting and / or other services at its absolute discretion for the purpose of maintenance, improvement, repair or prevention of problems including those highlighted in 5.5.

5.7. Where the Service Provider provides the Client with e-mail facilities, web hosting or other services which involve the provision of computer storage space, the Service Provider reserves the right to impose limits on the storage space, processor time and bandwidth provided. Such limits may be by reference to the physical amount of space made available, the storage capacity of email accounts, or any other method the Service Provider may specify. The Service Provider reserves the right to vary these limits from time to time and will keep the Client informed by e-mail. The Service Provider reserves the right to refuse material and/or to delete material which exceeds the relevant limit. Where the limits are exceeded or about to be exceeded, the Service Provider reserves the right to offer additional facilities at an agreed fee. The Service Provider reserves the right to refuse to continue hosting the Client's site should these limits continue to be exceeded and additional facilities not agreed, in which case fees incurred by the Client in rehosting the site will be the sole responsibility of the Client.

5.8 The Service Provider will keep up-to-date any records necessary with respect to the registration of domain names. The Client is responsible for informing the Service Provider of any change in contact details, in a timely manner.

5.9 The Client agrees that the Service Provider may submit the Client's business address and email address for the purposes of domain registration and management, and understands that this information may therefore be made publicly available. The Client also gives the Service Provider permission to use any of the Service Provider's business addresses and email addresses in the submission of  owner, technical, administrative and billing contact addresses of the Client's website domain name(s), for the purposes of providing the hosting management service to the Client.

5.10 Where agreed, the Service Provider will pay the renewal fees of the Client's domain name(s) on the Client's behalf for a period of one year or more, where necessary.

5.11 The Client agrees to give all access codes to the Service Provider as necessary in the provision of these services. The Client also gives permission for the Service Provider's NIC-handle to be registered as the technical, billing and administrative contacts of the Client's domain name(s).

5.12 The Service Provider may act as an agent for a third party hosting company ('OVH'), who would provide the infrastructure necessary for the hosting services provided. The Client agrees to the relevant OVH terms and conditions associated with the services provided, in particular to the conditions set out at  http://www.ovh.co.uk/customerspace/termsofservice/GENERAL_TERMS_AND_CONDITIONS_OF_SERVICES.pdf and at http://www.ovh.co.uk/customerspace/termsofservice/SPECIAL_CONDITIONS_FOR_WEBSITE_HOSTING_SERVICES_ON_A_SHARED_SERVER.pdf and, in the case of the purchase of a domain name, at http://www.ovh.co.uk/customerspace/termsofservice/SPECIAL_CONDITIONS_OF_REGISTRATION_RENEWAL_AND_TRANSFER_OF_A_DOMAIN_NAME.pdf. The Client shall notify the Service Provider if the above links cannot be accessed, and agrees to have read and be bound by the conditions therein.

5.12 The Client agrees to allow the Service Provider to act as an agent in its duties of providing the accepted hosting services. The Client accepts that the Service Provider may disclose information to these third parties or enter into commitments on behalf of the Client in the normal course of these duties and agrees that all contractual obligations associated with such services be transferred to the Client. All fees associated with such services will be agreed in advance.

5.13 Although the Service Provider may provide technical support relating to the hosting services commissioned, the Client agrees to address OVH SARL directly with issues relating to the hosting service, where the Service Provider is unable to do so, or chooses not to do so. All responsibility for the hosting services provided lie with OVH SARL.

6. Integration of Website operation/information into the Client’s administrative systems

6.1. The Client commissions the Service Provider to review the work required and benefits from integration of agreed aspects of the Client website information flow and to recommend a specified programme of integration.

6.2. The Integration fee or any outstanding part of it will be due in full on completion of the integration or agreed stages. The Client undertakes to pay the Service Provider the agreed fee promptly on approval of the completed integration or agreed staged development and on the submission of the associated invoice. The Client agrees not to unreasonably withhold approval of the work undertaken or of the staged development.

7. Search Engine Services and Internet Marketing Support

7.1. The Client commissions the Service Provider to undertake work on the Client’s website and marketing / promotion programme with a view to increasing its targeted visitor traffic, exposure to search engines and/or registration with search engines.

7.2. The Service Provider will report verbally, in writing or email as agreed, to recommend and agree the work to be undertaken.

7.3. The agreed fee or any outstanding part of it will be due in full immediately on presentation of the associated invoice. All payments made by the Service Provider to third parties in the normal course of its duties and within agreed budgets will be due when made or earlier by agreement. Expenditure on pay per click programmes will normally be charged monthly in arrears but one month’s budget will be charged and held by the Service Provider in advance for the monthly service and one quarter’s budget for the quarterly service.

7.4. Where a post registration report and resubmission of failed entries has been commissioned, this will normally be undertaken within 3 months of the main submission.

7.5 The Client authorises the Service Provider to contact third parties in the Client’s name as its agent in the course of its accepted duties. The Client accepts that the Service Provider may disclose information to these third parties or enter into commitments on behalf of the Client in the normal course of these duties.

7.6 The Service Provider will take all reasonable care to ensure reports on promotion programmes are accurate, meaningful and reliable. However, the Service Provider does not guarantee to identify all cases of pay per click fraud, other fraud or other problems however caused. Responsibility for subsequent actions and outcomes remains with the Client at all times.

7.7 Where work has been commissioned by the Client and is in progress by the Service Provider, the Client agrees to request approval from the Service Provider for any and all changes envisaged to the Client's website, whether they are made by the Client or a third party commissioned by the Client. The Service Provider reserves the right to modify or refuse any such change, as is reasonable in the execution of the service commissioned.

7.8 The Client agrees that the Service Provider may register any postal address of the Service Provider for any of the contacts registered for the Client's website domain name(s), for the purposes of the service commissioned. The Service Provider agrees to forward any communication received by post and for the attention of the Client, at the cost of the Client, and to be paid promptly on receipt of  appropriate invoices.

7.9 The Client agrees, unless otherwise stated, to maintain a visible link on the home page of the Client's website to the Service Provider's website, using the text "Search Engine Optimisation by [Service Provider's Trading Name]" or words to that effect in the appropriate language, for a period of at least 2 years after the completion of any such commissioned service.

8. Backup service

8.1 The Client commissions the Service Provider to make backups of website data, including, where agreed, databases. The backups will be transferred to a remote server, which itself is backed up nightly.

8.2 Client Access.The Service Provider will give the Client access to the backups via SFTP (Secure FTP).

8.3 Backups will be made nightly, weekly and monthly.

8.4 No uploading. Unless otherwise stated, the Client may not upload files onto the space made accessible via SFTP. Such use would breach the terms and conditions of the service, and the Client would become liable to additional charges associated with such use, at the Service Provider's discretion, for the entire period that the service has been provided.

8.5 Cancellations. Unless otherwise stated, the Client may cancel the service at any time, and would cease at the end of the calendar month in which the cancellation request is received by the Service Provider. The Service Provider may withdraw the service at any time, by giving at least 10 days notice.

8.6 Refunds. No refunds will be made for this service, except in the case of failure to make a backup available within a reasonable time. In all circumstances refunds will be limited to one month's subscription to the service, on a pro-rata basis. 

8.7 Payments. Payment for the service is payable one month in advance of the renewal period.

8.8 Only the databases and websites existing at the time the service is started will be included in the backups. The Client must inform the Service Provider if any additional databases or sites require backup after this time. The Service Proivder will include these additional backups, at the Service Provider's discretion, subject to an associated administration fee.

8.9 Where database backups require the existence of PHP/CGI scripts residing on the website server, it is the Client's responsibility to leave these scripts available via the same URL and unmodified. The Service Provider will not be responsible for failed backups due to any change to these scripts which are not made by the Service Provider.

8.10 Any changes to the access of the hosting service must be notified by the Client at least 10 days before the changes are due, in order to ensure a continuous service. Changes required to the backup scripts due to a change in the access to the hosting service will incur an additional administration fee.

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