Terms & Conditions for SearchQuest Europe Ltd.
THIS INTERNET SERVICES AGREEMENT is made BETWEEN:
(1) SEARCHQUEST EUROPE LIMITED a company registered in England under company number 6898297 and whose registered office is at 76 Church Street, Lancaster LA1 1ET (‘the Company’) and
(2) The Customer (as set out in writing)
NOW IT IS AGREED as follows:
1. Definitions and Interpretation
In this Agreement, the following terms have the means set out below: -
“Services” the internet services provided to the Customer by the Company as set out in writing.
“HomePage” the homepage of the Customer located on the worldwide web at www.yourdomain.co.uk/com etc.
“Fees” the fees for the Services as set out in writing.
“Limits on Traffic” the limits on web traffic which the Company is undertaking to process as set out in schedule 1
“Maintenance” the maintenance service specification as set out in schedule 2
“Work Product” all materials, documentation, computer programs, inventions (whether or not patentable), pictures, audio, video, artistic works and all works of authorship, including all worldwide rights therein under patent, copyright, trade secret or other property right, created or developed by the Company while providing the Services
2.1 The Company agrees to provide to the Customer the Services on the terms described in this Agreement subject to the Limits on Traffic and to provide Maintenance on a monthly basis.
2.2 The Services under this Agreement shall be performed in accordance with the Company’s standard procedures so long as such procedures do not conflict with the express terms of this Agreement.
2.3 Nothing under this Agreement shall affect the Customer’s statutory rights in particular but without limitation those under the Consumer Credit Act 1974 or the Data Protection Act 1998.
3.1 The Customer agrees to pay to the Company the Fees specified for the Services.
3.2 The Fees are due upon execution of this Agreement unless otherwise provided above. Any additional fees shall be invoiced on a monthly basis and shall be paid within 7 days after the date of invoice.
3.3 The Company will not perform the Services or any part of the Services until Payment of the Fees has been received in full.
3.4 In the event of non-payment of the Fees where the Services provided by the Company include the content manager web hosting service, the Company reserves the right to suspend the Services and the Customer’s access to the HomePage and any web pages provided to the Customer by the Company as part of the Services.
3.5 The Company operates a no refund policy. The company will allow a credit to be placed on the customer’s account for any cancelled services where a payment has been received if no work has commenced relating to that payment. This will be valid for a maximum period of 12 months. The Company will allow the customer to transfer the credit to another customer.
4.1 All payments due under this Agreement are net of applicable taxes.
4.2 All payments due under this Agreement are exclusive of VAT, which shall be payable by the Customer at the rate and in the same manner for the time being prescribed by law against submission of a valid tax invoice.
5.1 If a minimum term contract has not been signed, then this Agreement shall be effective commencing on the date stated in writing for a period of one month. The Agreement shall continue from month to month (subject to earlier termination as set out in clause 5.2) unless and until either party gives to the other not less than 30 days from the date overleaf. If the Fees increase the Customer shall be entitled to give 30 days notice of termination of this Agreement such notice to be received by the Company within 10 days of the Company sending notification of the increases to the Customer. If the Customer does not determine the Agreement in accordance with this clause, the Customer shall be deemed to accept the price increase.
5.2 Either party may terminate this Agreement without notice upon the other party’s breach of any term, condition or obligation under this Agreement if such breach is not remedied (if remediable):
(i) within 10 days from the date of written notice with regard of any monetary obligation; and
(ii) within 30 days from the date of written notice with regard to any other breach.
6. Customer responsibilities
6.1 In addition to the obligations of the Customer as otherwise specified in this Agreement, the Customer shall be solely responsible for the following:
6.1.1 the accuracy and content of any information provided by the Customer
to the Company; and
6.1.2 any information, programs and other information that the Customer receives as a result of the use of the Services, including without limitation, the entire responsibility of any losses of data, programs, breaches of security, viruses and disabling or harmful devices that the Customer may download or otherwise experience as a result of the Customer’s use of the Services.
6.2 The Customer shall notify the Company at least 7 days in advance if it intends to change its business details or stop providing any of the goods or services being offered through the Company.
6.3 The Customer shall arrange access to their website via FTP or uploads via their host provider. The Company is not responsible for loss of service due to limitations placed by hosting providers or website designers.
6.4 The Customer agrees to use the Services in a manner consistent with any and all applicable laws and regulations.
7.1 The Work Product shall be owned by the Company.
7.2 The Company shall not be liable to return any artwork or other material supplied by the Customer for the purposes of the Services.
7.3 Work Product shall not include the Confidential Information (as defined in clause 11.2) of the Customer. If ownership of all right, title and interest of the intellectual property rights in the Work Product shall not otherwise vest exclusively in the Company, the Customer assigns to the Company and upon the future creation thereof automatically assigns to the Company without further consideration, the ownership of all Work Product.
8. Limited warranty
8.1 Where applicable, the Company warrants that for a period of 90 days from the date of first installation of the Customer’s completed HomePage on the server described above, the coding of such HomePage shall be reasonably HTML-compliant. Notwithstanding the foregoing, the sole and exclusive remedy for a breach of the warranties contained in this clause 8 shall be that the Company shall replace the nonconforming coding to make such HomePage reasonably HTML-compliant.
8.2 The Customer acknowledges that HTML is an industry standard that contains some ambiguous provisions and that does not completely address all issues associated with the coding of HomePages accessible via the worldwide web. The Customer also acknowledges that HTML is a standard that will be amended from time to time and that not all browsers used by third parties to access the worldwide web implement HTML in the same way. Variations in HTML coding associated with ambiguities or revisions to the HTML standard or variations among worldwide web browsers shall not be the basis for a claim of breach of the Company’s warranties under this Agreement.
8.3 The warranties described in this clause 8 are subject to the limitations of liability described below. Except as provided in this clause 8, the Company does not make any express or implied warranties with respect to the services or any products provided under this Agreement, including but not restricted to the implied warranties of merchantability and fitness for a particular purpose.
9. Limitation of liability
9.1 In no event (death or personal injury excepted) will the Company be liable to the Customer for any indirect, incidental or consequential damages, or loss of profit arising out of the Services or any products provided under this Agreement, even if the Company has been advised of the possibility of such damages.
9.2 The Company’s liability to the Customer for actual damages for any cause whatsoever, regardless of the form of the action, will be strictly limited to 125% of the Fees paid for the prior 12 months.
10. Limitations of service
10.1 The Company does not guarantee that the Customer or any third parties will be able to access the HomePage created by the Company at any particular time.
10.2 The Company’s access services are provided on an ‘as-is, as-available’ basis. The Customer acknowledges that the need for routine maintenance and error correction may result in down time and that the Company cannot control the timing or volume of attempts to access the Company’s server.
11. Confidential Information
11.1 Each party shall use the same care and discretion, but in no event less than reasonable care and discretion, to prevent disclosure, publication or dissemination of the other party’s Confidential Information as it employs with similar information of its own; and shall not use, reproduce, distribute, disclose or otherwise disseminate the Confidential Information except in connection with the performance of its obligations under this Agreement.
11.2.1 As used in this Agreement the term ‘Confidential Information’ means any and all data and information relating to the business of the disclosing party:
(i) of which the receiving party becomes aware as a consequence of or through this Agreement;
(ii) which has value to the disclosing party and is not generally known by its competitors;
(iii) which is treated by the disclosing party as confidential; and
(iv) which has been reduced to tangible form and marked clearly and conspicuously with a legend identifying its confidential or proprietary nature, provided, however, that Confidential Information does not include any data or information which is already know to the receiving party, or which
(1) has become generally known to the public through no wrongful act of the receiving party;
(2) has been rightfully received by the receiving party from a third party without restriction on disclosure and without, to the knowledge of the receiving party, a breach of an obligation of confidentiality running directly or indirectly to the other party;
(3) has been disclosed pursuant to a requirement of a governmental agency or of law without similar restrictions or other protection against public disclosure, or is required to be disclosed by operation of law;
(4) is independently developed by the receiving party without use, directly or indirectly, of the Confidential Information received from the other party; or
(5) is furnished to a third party by the disclosing party under this Agreement without restrictions on the third party’s right to disclose the information.
Confidential Information may include, but is not limited to, information relating to the products, processes or financial affairs of the disclosing party.
12. Data transmission
The Company may collect, hold, control, use and transmit data obtained from and about the Customer and visitors to the website in the course of providing the Services. By signing this Agreement the Customer agrees to such data being so used and further agrees that it may be transmitted to others in accordance with the Company’s registration under the Data Protection Act 1998.
13. Force majeure
Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party. If such circumstances continue for a continuous period of more than 6 months, either party may terminate this Agreement by written notice to the other party.
14.1 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
14.2 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys fees.
14.3 All notices under this Agreement shall be in writing and shall be deemed given when personally delivered, when sent by confirmed fax, or 3 days after being sent by prepaid first class post to the address of the party to be notified as set out in this Agreement or such other address as such party last provided to the other by written notice.
14.4 Neither party shall have any right or ability to assign, transfer, or sub-license any obligations or benefit under this Agreement without the written consent of the other (and any such attempt shall be void), except that a party may assign and transfer this Agreement and its rights and obligations under this Agreement to any third party who succeeds to substantially all its business or assets.
14.5 If any portion of this Agreement is illegal or unenforceable, such portion(s) shall be excluded from this Agreement to the minimum extent required and the balance of this Agreement shall remain in full force and effect and enforceable.
14.6 This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement and can only be modified or waived by a subsequent written agreement signed by both parties. However the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
14.7 The parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
14.8 This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties accept the non-exclusive jurisdiction of the English courts over any claim or matter arising under or in connection with this Agreement or the legal relationships established by this Agreement.
Web Design & Development Terms
The following terms and conditions apply to all website development / design services provided by SearchQuest Europe Ltd to the Customer.
WD1.1 It is not necessary for any Customer to have signed an acceptance of these terms and conditions for them to apply.
WD1.2 If a Customer accepts a quote then the Customer will be deemed to have satisfied themselves as to the terms applying and have accepted these terms and conditions in full.
Please read these terms and conditions carefully. Any purchase or use of our services implies that you have read and accepted our terms and conditions.
WD2.1 Charges for services to be provided by the Company are defined in the project quotation/proposal that the Customer receives via phone, email or in person.
WD2.2 Quotations are valid for a period of 7 days.
WD2.3 The Company reserves the right to alter or decline to provide a quotation after expiry of the 7 days.
WD2.4 If, during the development of the website, the Company deems the project to need extra work from the original specification, extra charges will be incurred.
WD2.5 These charges will be due in full prior to the extra work being started.
WD2.6 Unless agreed otherwise, all website design services require a non-refundable payment in full at the time of placing the order.
WD2.7 Orders over £10,000 may be available on payment terms with a non-refundable deposit of fifty (50) percent) due at the time of placing the order and the remainder of the payment will be due in no more than two further instalments of twenty-five (25) percent per payment.
WD2.8 The first of these instalments will be due at home page design sign-off stage, and the final instalment due on website completion.
WD2.9 If the project is unreasonably delayed by the client, for any reason, then the Customer will be required to pay any outstanding balance at the immediate request of the Company.
WD 3. Customer Review
WD3.1 The Company will provide the Customer with an opportunity to review the appearance of the website during the initial homepage design phase.
WD3.2 Once the homepage design is signed off, the project will be moved onto development stage.
WD3.3 Any further design changes after the homepage design signoff will be chargeable to the Customer.
WD3.4 At the completion of the project, such materials will be deemed to be accepted and approved unless the Customer notifies The Company otherwise within ten (10) days of the date the materials are made available to the Customer.
WD 4. Turnaround Time and Content Control
WD4.1 The Company will publically launch on the Internet, or hand over the website to the Customer, by the date specified by The Company, or on a date agreed with the Customer at the time of receiving 100% of the content for the project.
WD4.2 The Customer agrees to delegate a single individual as a primary contact to aid The Company with progressing the commission in a satisfactory and expedient manner.
WD4.3 To begin the project The Company will require the Customer to provide all website content; page titles, text, images, and any other content agreed with the Customer at the start of the project, and needed by The Company in order to complete the Commission.
WD 5. Failure to provide required website content:
WD5.1 To remain efficient we must ensure that work we have programmed is carried out at the scheduled time. On occasions we may have to reject offers for other work and enquiries to ensure that your work is completed at the time arranged.
WD5.2 This is why we ask that you provide all the required information in advance.
WD5.3 On any occasion where progress cannot be made with your website because we have not been given the required information in the agreed time frame, and we are delayed as result, we reserve the right to impose a surcharge of up to 25%.
WD5.4 If you agree to provide us with the required information and subsequently fail to do within eight weeks of order placed we reserve the right to close the project and the balance remaining becomes payable immediately. We will automatically cancel the service without a refund. If you want to recommence the project after eight weeks, we will require the full payment on account of the total project value, before we can resume the project.
WD5.5 Text content should be delivered as a Microsoft Word, email (or similar) document with the pages in the supplied document representing the content of the relevant pages on your website. These pages should have the same titles as the agreed website pages. Images should be provided as JPG, PNG, GIF.
WD5.6 If your project involves a content management system you are able to keep your content up to date yourself, this does not include the design and artwork.
WD 6. Payment
WD6.1 Invoices will be provided by The Customer upon completion but before publishing the live website. WD6.2 Invoices are normally sent via email; however, the Customer may choose to receive hard copy invoices. Invoices are due upon receipt.
WD6.3 Accounts that remain unpaid thirty (30) days after the date of the invoice will be assessed a service charge in the amount of the higher of one and one-half percent (1.5%) or £30 per month of the total amount due.
WD 7. Additional Expenses
WD7.1 Customer agrees to reimburse The Company for any additional expenses necessary for the completion of the work.
WD7.2 Examples would be the purchase of special fonts, stock photography, and additional programming time for any extra functionality during the development process.
WD 8. Web Browsers
WD8.1 The Company makes every effort to ensure websites are designed to be viewed by the majority of visitors.
WD8.2 Websites are designed to work with the most popular current browsers (e.g. Firefox, Internet Explorer 8 & 9, Google Chrome, etc.).
WD8.3 Customer agrees that The Company cannot guarantee correct functionality with all browser software across different operating systems.
WD8.4 The Company cannot accept responsibility for web pages which do not display acceptably in new versions of browsers released after the website have been designed and handed over to the Customer.
WD8.5 As such, The Company reserves the right to quote for any work involved in changing the website design or website code for it to work with updated browser software.
WD 9. Default
WD9.1 Accounts unpaid thirty (30) days after the date of invoice will be considered in default.
WD9.2 If the Customer in default maintains any information or files on The Company’s Web space, The Company will, at its discretion, remove all such material from its web space.
WD9.3 The Company is not responsible for any loss of data incurred due to the removal of the service. Removal of such material does not relieve the Customer of the obligation to pay any outstanding charges assessed to the Customer’s account.
WD9.4 Customers with accounts in default agree to pay The Company reasonable expenses, including legal fees and costs for collection by third-party agencies, incurred by The Company in enforcing these Terms and Conditions.
WD 10. Termination
WD10.1 Termination of services by the Customer must be requested in a written notice and will be effective on receipt of such notice.
WD10.2 E-mail or telephone requests for termination of services will not be honoured until and unless confirmed in writing.
WD10.3 The Customer will be invoiced for design work completed to the date of first notice of cancellation for payment in full within thirty (30) days.
WD 11. Indemnity
WD11.1 All The Company services may be used for lawful purposes only.
WD11.2 You agree to indemnify and hold The Company harmless from any claims resulting from your use of our service that damages you or any other party.
WD 12. Copyright
WD12.1 The Customer retains the copyright to data, files and graphic logos provided by the Customer, and grants The Company the rights to publish and use such material.
WD12.2 The Customer must obtain permission and rights to use any information or files that are copyrighted by a third party.
WD12.3 The Customer is further responsible for granting The Company permission and rights for use of the same and agrees to indemnify and hold harmless The Company from any and all claims resulting from the Customer’s negligence or inability to obtain proper copyright permissions.
WD12.4 A contract for website design and/or placement shall be regarded as a guarantee by the Customer to The Company that all such permissions and authorities have been obtained.
WD12.5 Evidence of permissions and authorities may be requested.
WD 13. Standard Media Delivery
WD13.1 Unless otherwise specified in the project quotation, this Agreement assumes that any text will be provided by the Customer in electronic format (ASCII text files delivered on usb drive or via e-mail or FTP) and that all photographs and other graphics will be provided physically in high quality print suitable for scanning or electronically in .gif, .jpeg, .png or .tiff format.
WD13.2 Although every reasonable attempt shall be made by The Company to return to the Customer any images or printed material provided for use in creation of the Customer’s website, such return cannot be guaranteed.
WD 14. Design Credit
WD14.1 A link to The Company will appear in either small type or by a small graphic at the bottom of the Customer’s website.
WD14.2 The Customer also agrees that the website developed for the Customer may be presented in The Company’s portfolio.
WD 15. Access Requirements
WD15.1 If the Customer’s website is to be installed on a third-party server, The Company will provide the Customer with all relevant files for the Customer to upload to their hosting services.
WD15.2 The Company will provide the files via email in a compressed folder.
WD15.3 There will be an additional charge if the Company is asked to install on the Customer’s behalf.
WD 16. Post-Placement Alterations
WD16.1 The Company cannot accept responsibility for any alterations caused by a third party occurring to the Customer’s pages once installed.
WD16.2 Such alterations include, but are not limited to additions, modifications or deletions.
WD 17. Domain Names
WD17.1 The Company may purchase domain names on behalf of the Customer.
WD17.2 Payment and renewal of those domain names is the responsibility of the Customer.
WD17.3 The loss, cancellation or otherwise of the domain brought about by non or late payment is not the responsibility of The Company.
WD17.4 The Customer should keep a record of the due dates for payment to ensure that payment is received in good time.
WD 18. General
WD18.1 These Terms and Conditions supersede all previous representations, understandings or agreements. WD18.2 The Customer’s signature below or payment of an advance fee constitutes agreement to and acceptance of these Terms and Conditions.
WD 19. Governing Law
WD19.1 This Agreement shall be governed by English Law.
WD 20. Liability
WD20.1 The Company hereby excludes itself, its Employees and or Agents from all and any liability from:
• Loss or damage caused by any inaccuracy;
• Loss or damage caused by omission;
• Loss or damage caused by delay or error, whether the result of negligence or other cause in the production of the web site;
• Loss or damage to Customers’ artwork/photos, supplied for the site. Immaterial whether the loss or damage results from negligence or otherwise.
WD20.2 The entire liability of The Company to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the charges paid for the Services under this Agreement in respect of which the breach has arisen.
WD 21. Severability
WD21.1 In the event any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired and the Agreement shall not be void for this reason alone.
WD21.2 Such invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to the intention of the parties underlying the invalid agreement.
The Limits on Traffic
High bandwidth usage: SearchQuest offers a bandwidth usage of 2GB data transfer per month.
High server storage use: SearchQuest offers a combined Website & Email hosting service, with up to 10GB permitted storage.
In rare cases, SearchQuest may find a customer to be using server resources to such an extent that he or she may jeopardize server performance and resources for other customers. In such instances, SearchQuest reserves the right to impose the High Resource User Policy for the consideration of all customers.
HIGH RESOURCE USER POLICY
Resources are defined as bandwidth and/or processor utilisation.
SearchQuest may implement the following policy to its sole discretion:
When a website is found to be monopolising the resources available SearchQuest reserves the right to suspend that site immediately. This policy is only implemented in extreme circumstances and is intended to prevent the misuse of our servers.