GENERAL TERMS AND CONDITIONS OF SERVICE

 

1.              INTERPRETATION

1.1            The definitions and rules of interpretation in this clause apply in these conditions.

 

 “Charges” means the fees payable by the Customer to the Company in return for the provision of the Services as detailed in clause 4.

“Customer” means the person, firm or company to whom the Company is to provide the Services in accordance with the Agreement.

“Company” means Formability Ltd, an IT consulting and application development company located at Europa House, Barcroft Street, Bury, Lancashire, BL9 5BT, England. Tel: +44(0)161 447 8828 Email: support@formability.co.uk

 “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

 “Services” means the web software design, email management and web hosting services provided by the ‘Design by Formability’ product.

“Terms” means the terms and conditions set out in this document which, when taken with any other terms and conditions set out in any other document varying them, together form the “Agreement”.

“VAT” means Value Added Tax.

“Working Day” means a day that is not a Saturday or Sunday, Christmas Day, Good Friday or any day that is a bank holiday or public holiday.

1.2            A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.3            Words in the singular include the plural and in the plural include the singular.

1.4            A reference to one gender includes a reference to the other gender.

1.5            Clause headings do not affect the interpretation of these clauses.

 

2.              Terms of Contract

2.1            These Terms shall apply to all services delivered by the Company and the Customer relating to the Services to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any order, confirmation of order, specification or other document).

2.2            Subject to any variation agreed between the Company and the Customer, these Terms shall apply and shall prevail over any other term of the Agreement. No variation or waiver or addition to the Agreement shall be binding on the Company unless and until it is confirmed in writing by the Company.

 

3.              WARRANTIES

 

3.1            The Company warrants to the Customer that it shall:-

(a)                        Normally supply the Services to the Customer instantly, otherwise as soon as reasonably practicable and in any event no later than 5 Working Days from the commencement date of the Agreement.

(b)                        Inform the Customer of any delay in the delivery of the Services as soon as reasonably practicable.

(c)                         Provide a full refund of the Charges to the Customer if it is unable to supply the Services within 5 Working Days from and including the commencement date of the Agreement.

(d)                        Provide the Services using reasonable care and skill but at all times this will be subject to downtime caused by routine or emergency maintenance by the Customer or occasioned by third parties. The Company will not be liable to the Customer or any third party for any losses whatsoever caused by such downtime.

 

4.              CHARGES

 

4.1            All invoices issued to the Customer by the Company shall be payable immediately on presentation.

4.2            Time for payment shall be of the essence.

4.3            No payment shall be deemed to have been received until the Company has received cleared funds.

4.4            All payments payable to the Company under the Agreement shall become due immediately on its termination despite any other provision. This clause is without prejudice to any right to claim for interest under the law, or any such right under the Contract.

4.5            If the Customer fails to pay the Company any sum due pursuant to the Agreement within 14 calendar days of the sum falling due, the Customer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 8% above the base lending rate, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

4.6            If any sum due to the Company from the Customer remains unpaid for more than 20 calendar days after the date of the invoice the Company shall be entitled to suspend all further work for the Customer until the outstanding sum is paid in full to the Company. In these circumstances the Company shall not be liable for any delays or losses or resulting from such suspension.

4.7            The Customer acknowledges that the Charges are exclusive of any telecommunication charges. All telecommunication charges incurred by the Customer in connection with the use of the Services remain solely at all times the responsibility of the Customer. The Company does not accept liability or responsibility for any such charges.

4.8            VAT will be payable where applicable at the prevailing rate on all fees.

 

5.              CUSTOMER OBLIGATIONS

 

5.1            The Customer shall:-

(a)                        Obtain the consent of individuals whose personal data are to be held;

(b)                        Keep confidential all passwords received from the Company for the purpose of the Services and notify the Company immediately upon becoming aware that a password has become known to an unauthorised party;

(c)                         Only make use of the Services for a legitimate and lawful purpose;

(d)                        Allow the Company to access the Customer’s data records to check for any infringements of the Customer’s obligations under this agreement; and

(e)                        Inform questionnaire users that cookies must be enabled on their browser for correct use of the system.

5.2            The Customer shall not:-

(a)                        Modify or alter the software without the prior consent of the Company;

(b)                        Send, transmit, make available, copy, retransmit, broadcast or publish (whether directly or indirectly) in whatever form any data, information or contractual rights, material or statement which infringes the Intellectual Property Rights or contractual or statutory rights of any person or legal entity or the laws or statutory regulations relating to defamation, contempt, blasphemy, infringement of privacy or personal data rights and any equivalent or related laws in any territory in which they are or may be accessed or made available;

(c)                         Make use of the Services to send or cause to be sent or forwarded electronic mail without the express or assumed agreement of the respective recipient;

(d)                        Use the Services to obtain or offer or permit to be offered for profit or otherwise any material, images, displays or Services which are erotic or pornographic including but not limited to any other material, images, displays or services which are offensive, illegal or immoral or which is in breach of any legal obligation;

(e)                        Arrange information in a way that leads to a risk of or causes an excessive load on the server provided by the Company in connection with the Services;

(f)                         Exceed the relevant data volumes unless the Customer has agreed with the Company to pay additional charges as may vary from time to time for the data transfer volume exceeding the agreed level in the Services; or

(g)                        Use the Services in a manner that infringes a third party’s copyright or other Intellectual Property Rights of whatsoever nature.

5.3            Without prejudice to any other rights of the Company arising from the Agreement or otherwise, the Customer will indemnify the Company against all claims, losses, liabilities, expenses, fines and penalties of whatsoever nature made, incurred or imposed as a result of a breach by the Customer of the terms of this clause.

 

6.              LIABILITY

 

6.1            The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

(a)        any breach of the Agreement;

(b)        any use to which the Company’s Services are put with the Agreement of the Company, if any; and

(c)         any representation, statement or tortious act or omission including negligence arising under or in connection with the Agreement.

6.2            Save for the warranties referred to at clause 3.1, all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Agreement.

6.3            Nothing in these conditions excludes or limits the liability of the Company: 

(a)        for death or personal injury caused by the Company's negligence;

(b)        under section 2(3) Consumer Protection Act 1987;

(c)         for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or

(d)        for fraud or fraudulent misrepresentation.

6.4            Subject to clause 6.2 and clause 6.3:

(a)        the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to 500 GBP; and

(b)        the Company shall not be liable to the Customer for loss of revenue, profit, business, anticipated savings or profits or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Agreement.

6.5            The Customer will indemnify the Company for all loss of revenue, business profits, costs and expenses arising from any failure by the Customer to use the Services in accordance with the Agreement and against any fines or penalties imposed by any regulatory, advertising or trading body or authority in connection with the use of the site by the Customer.

6.6            The Company disclaims all liabilities in connection with the following:-

(a)        Loss of material uploaded;

(b)        Incompatibility of the site with any of the Customer’s equipment, software or telecommunications links and any damage caused to the Customer’s equipment, software or telecommunications links as a result of any incompatibility;

(c)         Technical problems including errors or interruptions of the site; and

(d)        Unsuitability, unreliability or inaccuracy of the site.

6.7            The Company will indemnify the Customer against claims made against the Customer by third parties for breach of their Intellectual Property Rights if such breach has been caused by the act, omission or otherwise of the Company, its employees or agents.

6.8            Nothing in the Agreement shall prevent the Company from pursuing payment of a debt against the Customer.

6.9            Where the Customer accesses the site from locations outside the United Kingdom, the Customer does so on the Customer’s own initiative and is responsible for compliance with local laws.

 

7.              TERMINATION

 

7.1            Either party may at any time by giving notice in writing summarily terminate the Agreement without compensation to the other party if the other party shall become bankrupt, or if a body corporate pass a resolution or the court shall make an order that one party be wound up, otherwise than by way of amalgamation or reconstruction, or if a receiver or manager on behalf of a creditor shall be appointed, or if circumstances shall arise which entitles the court to make a winding up order.

7.2            The Company shall have the right to terminate the Agreement without reason upon giving 14 calendar days written notice to the Customer and termination shall occur at the expiry of the notice period. The Customer shall have the right to terminate the Agreement at any time giving written notice to the Company in which case termination shall occur at the reception time of the notice.

7.3            Termination or expiry of the Agreement for whatever reason shall not prejudice or affect any right of action or remedy which shall have occurred or shall accrue thereafter to either of the parties.

7.4            The Company reserves the right to terminate the Agreement without notice upon any of the following events:-

(a)                        The Charges and/or additional charges are outstanding for more than 20 calendar days;

(b)                        The Customer is in breach of his obligations as set out in clause 5; or

(c)                         The Customer fails, despite prior warning, to remedy a breach.

7.5            Should the Customer not receive email confirmation of their termination within 14 calendar days of the request date the Customer is responsible for contacting the Company to ensure the termination has been received.

 

8.              EFFECT OF TERMINATION

 

On termination or expiry of the Agreement for whatever reason the following provisions shall apply:-

 

8.1            The Services and all copies thereof, which is the subject matter of the Agreement, will be returned to the Company in good condition if required, and in any event in no worse condition that at the commencement of the Agreement;

8.2            The Customer shall pay immediately all Charges and/or additional charges outstanding under this Agreement to the Company within 14 calendar days.

8.3            The Customer shall pay all amounts (if any) as and when such amounts shall fall due.

 

9.              CUSTOMER’S CANCELLATION RIGHTS

 

9.1            The Customer has the unreserved right to cancel this Agreement at no cost and without any reason within 7 calendar days from the date the Agreement is formed.

9.2            The Customer may exercise the right of cancellation by notifying the Company in writing at the Company’s address shown in clause 1.1 by writing to the Company or sending an email to the Company.

9.3            The Customer will no longer have the right referred to in clause 9.1 once the Company has commenced provision of the Services with the Customer’s consent. The Customer shall be deemed to have given such consent by accepting these Terms.

 

10.          LIMITATION OF SERVICE

 

10.1         The Company shall be entitled to suspend such access to the Services as it deems necessary by the Customer or any third party to all or any part of the Services if the Customer is in breach of the Agreement. This clause shall not be construed in any way as limiting the termination rights of the Company as provided by clause 6.

10.2         If access to the Services is suspended as a result of downtime caused by routine or emergency maintenance by the Customer, the Services shall be reconnected as quickly as practicable after, in the opinion of the Company, such circumstances giving rise to the need to suspend have ceased to exist.

10.3         Following the suspension of the Services (other than for the reasons referred to in clause 10.2) the Customer shall be obliged to apply for reconnection of access to the Services but the Company shall not be obliged to reconnect access to the Services. On receipt of an application to reconnect the Company may do one of the following:-

(a)                        Reconnect as soon as reasonably practicable subject to payment of all Charges and/or additional charges and any amounts due;

(b)                        Specify additional reasonable terms required by the Company prior to agreeing access to the Services; or

(c)                         Refuse to allow access to the Services on the basis that the breach or instruction or event that led to the suspension of access is not remedied or still remains as the case may be.

10.4         The Customer will pay any additional charges as may be required from time to time by the Company for reconnection to the Services.

10.5         If the breach or instruction or event which led to the suspension of the Services persists, the Company shall be entitled to terminate without notice:-

(a)                        In the case of non payment of any Charges or additional charges, if such amounts remain outstanding for more that 20 calendar days; or

(b)                        In the case of any other event leading to suspension of access to the Services, if it remains not remedied or additional terms are not accepted within 14 calendar days of the suspension.

10.6         The Company does not give any warranties in connection with the provision of goods supplied by a third party for the provision of the Services but shall, if applicable, assign to the Customer the benefit of any licence, warranty, guarantee or indemnity given by the third party supplying any goods to the Company.

10.7         The volume of data stored at any time for a Customer is limited to twenty (20) MB (Megabytes). Additional volume of data transfer and storage will be charged under a Customer specific agreement. User accounts may be deleted after 60 calendar days if the account has expired, in order to free up resources.

 

11.          LICENCE AGREEMENT

 

11.1         In consideration of, and subject to, payment of the Charges by the Customer, the Company shall grant the Customer a non-exclusive licence to utilise the Services from the commencement date of the Agreement until the termination of the Agreement in accordance with the terms and conditions of the Agreement.

11.2         The Customer undertakes to ensure that everyone who uses the Services shall observe the following terms which constitute the Licence Agreement:-

(a)                        The Customer may take such back up copies of their data as is necessary in accordance with best computing practice.

(b)                        Manuals may be printed out on paper for use in the Customer’s security procedures.

(c)                         The Customer shall not be entitled to use, copy, process or transfer the software in any way other than that described herein to convert the software into another form (Reverse-Assemble-Reverse-Compile) or in any other way translate the software.

(d)                        The Customer shall not be entitled to rent out or lease the software or assign or sub-licence the software unless expressly agreed.

 

12.          INTELLECTUAL PROPERTY RIGHTS

 

All Intellectual Property Rights of the Company in any software and ancillary documentation shall at all times for the duration period of the Agreement remain vested in the Company.

 

13.          DATA PROTECTION

 

13.1         All information, mail messages and other data stored on the Company’s computer system will be treated as private and solely the property of the Customer at all times and will not be duplicated, copied, reproduced or viewed publicly in any way except:

(a)                        with express or implied permission of the Customer; and/or

(b)                        for the purpose of providing the Customer with the Services; and/or

(c)                         for the purpose of providing the Company’s back up services; and/or

(d)                        for the Company’s own internal purposes such as market research.

13.2         By entering into the Agreement the Customer acknowledges and agrees that once the Customer’s unencrypted data passes onto the Internet it is not secure and is open to unscrupulous use. The Company cannot accept responsibility or liability for any data or information that becomes available by such means against the wishes of the Customer.

13.3         The Customer acknowledges and agrees that its name, address and payment record may be submitted to a credit reference agency and personal data will be processed by and on behalf of the Company.

 

14.          FORCE MAJEURE

 

The Company reserves the right, without incurring any liability to the Customer, to defer the performance of or to cancel the Agreement if it is prevented from or delayed in the carrying on of its business or performing its obligations under this Agreement due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 30 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Agreement.

 

15.          INSURANCE

 

Where applicable, the Customer shall take out and maintain at its own cost insurance against any property loss insuring for its full replacement value against all usual risks until returned to the Company.

 

16.          COMPLAINTS

 

The Customer should address any complaints concerning the provision of the Services to the Company at the Company’s address stated in clause 1.1.

 

17.          COMMUNICATIONS

 

17.1         Unless specified in the Terms all communications between the parties about the Agreement shall be in writing and delivered by hand or sent by pre-paid first class post or sent by email:

(a)                        (in case of communications to the Company) to the address stated in clause 1.1 or such changed address as shall be notified to the Customer by Company; or

(b)                        (in the case of the communications to the Customer) to the registered office of the Customer (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Agreement or such other address as shall be notified to the Company by the Customer.

17.2         Communications shall be deemed to have been received:

(a)                        if delivered by hand, on the day of delivery; or

(b)                        if sent by pre-paid first class post, two days Working Days after posting (exclusive of the day of posting); or

(c)                         if sent by email on a Working Day prior to 4.00 pm, at the time of transmission and otherwise on the next Working Day.

 

18.          GENERAL

 

18.1         Each party shall treat as confidential all information received by it from the other party relating to the other party’s business, customers, strategies and plans, and such information may only be used for the purpose of the Agreement and may only be disclosed in strict confidence by a party to its professional advisers or any person to whom disclosure is required by law, to its employees or subcontractors where reasonably necessary for the purposes envisaged by the Agreement, and where otherwise specifically permitted by the Agreement.

18.2         Each right or remedy of the Company under the Agreement is without prejudice to any other right or remedy of Company whether under the Agreement or not.

18.3         If any provision of the Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect.

18.4         Failure or delay by the Company in enforcing or partially enforcing any provision of the Agreement shall not be construed as a waiver of any of its rights under the Agreement.

18.5         Any waiver by the Company of any breach of, or any default under, any provision of the Agreement by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Agreement.

18.6         The parties to the Agreement do not intend that any condition of the Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

18.7         The formation, existence, construction, performance, validity and all aspects of the Agreement shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts without prejudice to the Company’s right to take proceedings in any other jurisdiction in order to enforce payment of any sums owed to the Company.