FRESH STUDIOS TERMS & CONDITIONS
These terms and conditions shall apply to the agreement between “Fresh Studios” and the” Client” applying for the provision of services by Fresh Studios.
These terms and conditions together with any documents expressly referred to in them, contain the entire Agreement between us relating to the subject matter covered and supersede any previous Agreements, arrangements, undertakings or proposals, written or oral: between us in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions.
In agreeing to these terms and conditions, you have not relied on any representation other than those expressly stated in these terms and conditions and you agree that you shall have no remedy in respect of any misrepresentation which has not been made expressly in this Agreement.
DEFINITIONS
In this Agreement, the following expressions shall mean:-
“Fresh Studios” – Fresh Studios its, employees, consultants or agents.
“Client” – individual, business, partnership, company or charity obtaining or proposing to obtain goods or services from Fresh Studios.
“Client Content” – any content including text and images provided by the client
“Proposal” – our proposal document and any other documentation or verbal agreement which includes a description of the work Fresh Studios proposes to undertake for the client
“Intellectual Property Rights” - copyrights, patents, registered and unregistered design rights, topography rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world.
“Inappropriate Material” - material that under the laws of any jurisdiction where the material can be accessed is or may be any of the following:- abusive, defamatory, harmful, libellous, malicious, obscene, pornographic, profane, threatening, unlawful, infringes any Intellectual Property Rights, constitutes or encourages a criminal offence or contains a virus, worm, Trojan horse or other harmful code
“Relevant Legislation” - such laws of England and the Client’s country as relate to data protection and any laws of England and the Client’s country governing Inappropriate Material.
“Services” - the services identified to be provided by Fresh Studios to the Client on any letter of confirmation, quotation or other correspondence from Fresh Studios to the Client.
DOMAIN NAME REGISTRATION AND TRANSFER OUT
The registration and use of the client’s domain name is subject to the terms and conditions of use applied by the relevant naming authority. Fresh Studios will not be liable to any claim in respect of refusal to register a domain name.
Fresh Studios will not apply for any domain name that it deems to be “inappropriate”.
Fresh Studios will only begin the domain name registration process on behalf of a client after receiving the project deposit in full. Fresh Studios will not be held liable in the event of a domain name being registered by a third party prior to our own registration process.
We accept no liability in respect of the use by you of any domain name; any dispute between you and any other person must be resolved between the parties concerned in such dispute. If any such dispute arises, we shall be entitled, at our discretion to suspend or cancel the hosting of website with the disputed domain name. We shall also be entitled to make representations to the relevant naming authority but will not be obliged to take any part in any such dispute.
Should Fresh Studios receive a letter or notification of a problem regarding the domain name (or the content of the website) we reserve the right to immediately take the website off-line until the issue is shown to be resolved.
Should the client request transfer out of any domain name from Fresh Studios control, then an administration fee based on the charge levied by our suppliers, plus £15 will be payable. No guarantee, warranty or liability can be given or accepted in respect of time scale or accuracy as this is reliant on third party involvement.
PAYMENT & SERVICES
Fresh Studios will carry out work for clients in accordance to their instructions, as agreed between Fresh Studios and the client.
Payment is only deemed received when Fresh Studios are in receipt of cleared funds.
At project acceptance Fresh Studios can provide an estimated completion date, however we cannot guarantee this date as a final completion date. If the client causes a delay (such as by not supplying content), any time scale will need to be put back to allow for this.
Fresh Studios will supply the client with a written proposal where required following the initial brief. Any such proposal is confidential and intended solely for the use of the individual to whom it is addressed. Any dissemination, forwarding, printing or copying of this proposal or any part there of is strictly prohibited.
Following acceptance of our initial proposal and payment in full of any required deposit, Fresh Studios will supply a full technical specification where required, the cost of which will be clearly outlined in the initial proposal. Any requested alterations to this document by the client may directly influence the cost of the project and the client will be informed of any such change. Should the technical specification not be acceptable to the client, they can choose to cancel their contract and will be liable to pay for any work undertaken to date. Any dissemination, forwarding, printing or copying of the technical specification or any part there of is strictly prohibited.
Quotes are valid for 30 days.
Fresh Studios reserve the right to alter our prices at any time without prior notice. If a quote at an original price has been made it will be valid for 30 days and subsequently during the life of the current commission, however additional work may be charged for using the new pricing structure.
A non-refundable deposit of 50% of the agreed initial project cost is normally required with a copy of our signed contract, letter or e-mail communicating an authority to proceed from the client.
Fresh Studios retain the right to display any work including graphics and web design elements as examples of their work.
Non-delivery or non-performance of services by any third party shall not give the Client any right to delay any payment to Fresh Studios or to make any claim whatsoever against Fresh Studios.
Any additional services requested, at any time, will be charged at the current standard rates.
The Client agrees to make payment for the Services by payment of invoice within 30 days of the invoice date, however the balance payment for web design projects is due on completion and sites will only be activated and available for public use on receipt of this payment.
Termination of services by the Client must be requested in a written notice and will be effective on receipt of such notice.
E-mail or telephone requests for termination of services will not be honoured until and unless confirmed in writing. In the event that the work undertaken up to the point of cancellation exceeds the value of any deposit received, the client will be invoiced for work completed and third party costs incurred to the date of first notice of cancellation for payment in full. Any deposits made are non-refundable.
All payments shall be made by cash, bank transfer or cheque. Payment is not accepted by credit or debit card. If any monies become overdue for payment Fresh Studios may remove, or not remove, the Clients web site from the hosting service, without prejudice to Fresh Studios rights to claim for the first monies owed, interest and costs of collection.
If payment is not made on the due date Fresh Studios shall be entitled without limiting any other rights it may have to charge interest on the outstanding amount (both before and after any judgment) at the rate of 5% above the base rate from time to time of the four major clearing banks from the due date until the outstanding amount is paid.
Fresh Studios and its subcontractors retain the express right to display any work including graphics and web design elements as examples of their work in their respective portfolios.
We reserve the right to refuse to construct a web site that we may judge as unfit due to content or otherwise. This includes, but is not limited by, sites containing adult oriented material such as pornography, sites which promote hatred towards persons belonging to any ethnic group, religion or sexual orientation and sites which infringe copyright or are contrary to UK laws.
Fresh Studios produce web projects where every effort is made to display the pages acceptably on most popular browsers currently available, however we cannot accept responsibility for pages which don’t display properly on versions of browsers released after the project is completed.
INDEMNITY
Fresh Studios liability (where permitted by law) is limited to the amount of £250,000.
The Client hereby agrees fully to indemnify and keep indemnified and hold harmless Fresh Studios, its employees and agents from and against any and all claims, costs, damages, losses or liability (whether civil or criminal) and expenses (including, but not limited to, legal fees) sustained or incurred by Fresh Studios or any of its employees and agents directly or indirectly and any claim brought against us by a third party resulting from the provision of Services by us to you and or your use of the Services and the Server and in any jurisdiction as a result of:-
i) the provision by Fresh Studios to the Client of any Service, or
ii) any breach by the Client of any of its warranties contained in this Agreement; or
iii) any content material or required mode of operation supplied or specified by the Client for any Service; or
iv) any breach by the Client of any of its obligations in this Agreement.
The Client undertakes that it will not transmit Inappropriate Material, infringe the Intellectual Property Rights of any third party, or transmit bulk e-mail (spamming).
The Client acknowledges that it is responsible for complying with any Relevant Legislation.
The Client acknowledges and agrees that Fresh Studios is not responsible for the security of the contents of e-mail sent or received by the Client, and that Fresh Studios are not responsible for non receipt, non-delivery or mis-routing of e-mail or any failure of the e-mail system.
We do not guarantee that the Server will be free from unauthorised users or hackers.
Where products or services supplied by Fresh Studios to a client are supplied to Fresh Studios by third parties, the client agrees to be bound by any terms and conditions of that supplier and any licence agreements and fully indemnifies Fresh Studios in every respect.
FORCE MAJEURE
Fresh Studios shall bear no liability for loss, damage or delay howsoever arising caused by circumstances outside its control.
If the circumstances causing the delay were to continue, Fresh Studios reserves the right to cancel the contract and charge for all work done to date?
WARRANTY
Fresh Studios relies on third party suppliers to provide uninterrupted Services and to the extent Services are reliant on third parties products and services, therefore Fresh Studios makes no warranties or representations that any Service will be uninterrupted or error-free, due to the nature of the services being provided by means of computer and telecommunication systems.
If a problem occurs subsequent to launch due to the malfunction of any web page, form, script, or other component, or due to the failure or cessation of the web server or service on which the pages are stored, Fresh Studios will make every reasonable endeavour to correct the problem. If the failure cannot be corrected within 2 hours of labour, the client will be liable to pay for any extra time/labour or other resource needed to correct the site. If the failure is due to our hosting companies failure then with the clients agreement we will try to arrange re-hosting of the web to an alternative web server but the client will need to bear the full cost of this at our prevailing hourly rate and the full cost of problems with the domain name and full cost of the new web hosting business to host the site for the client.
As the original domain name purchase and web hosting facility was arranged through a third party without any recourse to Fresh Studios on behalf of the client then Fresh Studios its employees consultants and agents in no event will be liable to the Client for any direct or indirect or consequential loss or damage whatever (for example but not limited to loss of business, loss of opportunity, loss of profits). No refund by Fresh Studios will therefore be due to the Client for any unused portion at the time the third parties services gave problems or ceased.
In no event will Fresh Studios be liable to the Client for any indirect or consequential loss or damage whatever (for example but not limited to loss of business, loss of opportunity, loss of profits)
Where clients post a customers personal data or receives data from their customers they agree to comply with the Data Protection Act 1998
WEB DESIGN & WEB HOSTING
Web site design and development undergoes the following methodology:
1 > Initial meeting and client brief
2 > Proposal sent from Fresh Studios to Client
3 > Updates to proposal & costs where applicable
4 > Client approval
5 > Signing of contract where requested by Fresh Studios
6 > Client to pay deposit where requested by Fresh Studios
7 > Technical Specification sent from Fresh Studios to Client
8 > Amends to Technical Specification & costs where applicable
9 > Client approval
10 > Initial Design work
11 > Client approval
12 > Build and development of website on testing server
13 > Client approval
14 > Upload of website onto live server ready for launch
15 > Client to pay Fresh Studios any outstanding balance
16 > Input of data by client via their own CMS where applicable
17 > Client request for website launch
18 > Website made live by Fresh Studios
In the event that the client delays the approval of any work beyond 30 days after delivery, Fresh Studios reserves the right to cancel any contract and invoice for work completed to date and beyond the value of the initial deposit.
The Client acknowledges and accepts that it bears sole responsibility, legal and otherwise for the content of all material appearing on the Clients web site designed or hosted by Fresh Studios, or third parties.
We make no representation and give no warranty as to the accuracy or quality of information received by any person via the Server and we shall have no liability for any loss or damage to any data stored on the Server;
You shall effect and maintain adequate insurance cover in respect of any loss or damage to data stored on the Server;
You represent, undertake and warrant to us that you will use the Web Site allocated to you only for lawful purposes. In particular, you represent, warrant and undertake to us that;
You will not use the Server in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will you authorise or permit any other person to do so;
You will not post, link to or transmit
(a) any material which is inappropriate or unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable in any way;
(b) any material containing a virus or other hostile computer program;
(c) any material which constitutes, or encourages the commission of, a criminal offence or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction;
You shall keep secure any identification, password and other confidential information relating to your account and shall notify us immediately of any known or suspected unauthorised use of your account or breach of security, including loss, theft or unauthorised disclosure of your password or other security information;
You shall observe the procedures which we may from time to time prescribe and shall make no use of the Server which is detrimental to our other clients;
You shall procure that all mail is sent in accordance with applicable legislation (including data protection legislation) and a secure manner;
In the case of an individual User, you warrant that you are at least 18 years of age and if the User is a company, you warrant that the Services will not be used by anyone under the age of 18 years;
Any access to other networks connected to through Fresh Studios must comply with the rules appropriate for those other networks While we will use every reasonable endeavour to ensure the integrity and security of the Server, we do not guarantee that the Server will be free from unauthorised users or hackers and we shall be under no liability for non receipt or mis-routing of e-mail or for any other failure of e-mail.
LIMITATION OF LIABILITY
In no event shall we be liable to the client for any loss of business, contracts, profits or anticipated savings or any other indirect or consequential or economic loss whatsoever.
TERMINATION
Termination of this agreement can be effected as follows:-
a) Either party may terminate this agreement by giving 3 month’s notice subject to condition (b).
b) Fresh Studios may terminate this agreement at any time by giving 7 days written notice to the Client if the Client commits any breach of this agreement including but not limited to non-payment of any amount on the due date.
Fresh Studios may terminate this contract with immediate effect in the event of the Client becoming insolvent.
Following the termination of this agreement the copyright and ownership of the Services will remain that of the Fresh Studios.
If this agreement is terminated by either party, the Client can at the point of termination request that data currently held on their website (such as customer or product details) be provided to them on
CD-ROM. Any request for such data made after the date of termination may no longer be available and Fresh Studios will not be held liable for any such loss. Any work undertaken to supply the client with such data will be charged at Fresh Studios current rate.
Should a client request a copy of website files, Fresh Studios will provide this on CD-ROM. Rights to source code are not transferred to the client, and remain the property of Fresh Studios. Any work undertaken to supply the client with such data will be charged at Fresh Studios current rate.
No refund of any payments made by the Client will be made by Fresh Studios where termination takes place.
Clients web sites will be taken offline effective immediately following the termination of this agreement.
If this agreement is terminated by either party within the period stated in condition (b) then the full amount outstanding will become payable by the Client to the Fresh Studios forthwith.
GENERAL
Fresh Studios reserve the right at any time without notice to remove any Client from its services, web hosts, for breach of Inappropriate Material, or for linking to Inappropriate Material.
Clients are prohibited from employing any Fresh Studios employees without fresh Studios express approval.
The Client is deemed to have accepted and agreed to these Terms and Conditions by notifying Fresh Studios of their intention to commence/continue with the services provided by Fresh Studios, or by paying or continuing to pay any order, invoice or regular payment.
Rights to source code and work-up files are not transferred to the client, and remain the property of Fresh Studios.
NOTICES
Any notice to be given by either party to the other may be sent by either e-mail or by post to the address of the other party or such other address as such party may from time to time have communicated to the other in writing. If the notice is sent by e-mail, it will be assumed to be received on the day, or if sent by FAX shall be deemed to be served on receipt of an error free transmission report. If post mailing was used, it shall be deemed to be served three days following the date of posting
LAW
English Law shall govern this Agreement and the parties submit to the exclusive jurisdiction of the English courts.
HEADINGS
Headings are included in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.
FRESH STUDIOS DETAILS
Fresh Studios
2 Wellington Street
Bingley
West Yorkshire
BD16 2NB
Tel: 01274 510051
info@freshstudios.co.uk
www.freshstudios.co.uk
VAT number : 897 8909 28
END
Last Revised 04 / 10 / 2007
