TERMS & CONDITIONS
Thank you for choosing Digital Ethos. These terms, which you should read carefully, set out the basis on which we will provide our services to you.
Terms as at December 2016
PART I: DEFINITIONS AND AGREEMENT
PART I: DEFINITIONS, AGREEMENT AND COMMUNICATIONS & UPDATES
The words and expressions used throughout this document are defined here:
“Commencement Date” the date of the commencement of these Terms as detailed on the Order Form;
“Customer”, “you” the party signing up with Digital Ethos for the delivery of online services, including (among other things), web design, hosting, digital marketing, email services;
“Digital Ethos”, “we”,
“our”, “us” Digital Ethos Limited, its agents and employees;
“Go-Live” the process of publishing a new website live on the internet or activating programming code;
“Hosting Company” the provider Digital Ethos will use to host the website on the internet;
“Order Form” the pro forma signed by you and us confirming the particulars of our Services;
“Services” the services provided by Digital Ethos and any work carried out (paid or unpaid) by Digital Ethos on behalf of the Customer;
“Statement of Work” a statement of work agreed between us prior to commencement of our Services;
“Terms” the terms of this document by which Digital Ethos and the Customer will be bound;
“Website/App” the website or mobile app or other work product that Digital Ethos will create.
2. Agreement of Terms
Unless otherwise agreed in writing by a Director of Digital Ethos, these Terms shall apply to all Customers. No employees of Digital Ethos, other than its directors, have the authority to vary these Terms.
3. Communications & Updates
3.1. As we operate from different locations, we will communicate with you and update you on your project via BaseCamp, or some other project management and collaboration tool that we (in our sole discretion) will select. We may also communicate with you from time-to-time by e-mail. We will not be obliged to communicate with you using any other method.
3.2. We reserve the right to change the mode of communication due to business reasons, in which case we will notify you.
3.3. We expect you to respond to requests for information that we make for feedback and information needed for your project, within seven (7) working days of a request, unless we agree otherwise together.
3.4. In the event that (i). we do not hear from you or (ii). you do not respond in a satisfactory manner to our requests, as per clause 3.3 above, then the following will apply:
3.4.1. if we are able to complete the work to a reasonably satisfactory standard without your further input, we will continue to undertake the work as per your original brief or instructions (which will include continuing to update you and seek your comments and feedback at the agreed intervals); or,
3.4.2. if we consider that we are unable to complete the work to
a satisfactory standard without your further input, we will follow the procedure set out below:
188.8.131.52. we will send you written notice by signed-for post of the requirement that you respond to us. This notice will allow you up to a further thirty (30) days to respond (the exact deadline to be decided at our absolute discretion);
184.108.40.206. should you not respond satisfactorily, or at all, to this notice, we will send you a further written notice by signed-for post, allowing you a further fourteen (14) days to respond;
220.127.116.11. should you not respond satisfactorily, or at all, to this second notice, we will send you a final written notice by signed-for post, allowing you a further seven (7) days to respond; and,
18.104.22.168. should you not respond satisfactorily, or at all, to our final notice, we will then have the right to terminate your agreement with us and our services to you, in which case the provisions of clause 20 below will apply as if you had terminated the agreement; and,
22.214.171.124. we reserve the right to charge you our reasonable fees for any additional work we undertake pursuant to the procedures in this clause 3.4 (including, among other things, the cost to us of sending you the relevant written notices).
PART II: WEBSITES AND OTHER DEVELOPMENT WORK
4. Design and Development Process
4.1. We may negotiate and agree with you a Statement of Work, in addition to these terms.
4.2. We work hard to deliver our work as efficiently as possible. As part of the design process for a new website or mobile app or other development work, we will:
4.2.1. provide a draft mock-up of the look and feel of the Website/App or other work product and invite your comments and feedback on this;
4.2.2. make updates to the mock-up in light of your comments and feedback, and resubmit the work to you for feedback once again.
4.3. We assume 2-3 design rounds operating in this manner, which is usually sufficient for our Customers. If we need to provide further design changes and additional design rounds we reserve the right to charge additionally for our time in this process. We will only ever do this with your agreement. This clause is designed to provide a reasonable and fair boundary around the time we will commit to the design stages of your website project.
5. Timescales and Payments
5.1. In general, unless otherwise agreed with you and subject to clause 5.2 below, our timescale for a new website or mobile app to Go-Live are twelve (12) weeks from the point at which you enter into these Terms.
5.2. A number of factors can impact how long it will take to get a website or mobile app completed and Go-Live, and we typically find that a lack of information from our Customers cause projects to take longer than both parties might like. When you are signing up with us, please think about the following:
5.2.1. Content. If we are writing it for you, great! – But it is still a good idea to put thoughts to paper and get a clear image in your mind of what you’d like your website to say about you. We’ll do the rest.
5.2.2. If you are writing your own content, we need this provided in a Word (.doc or .docx) format, spell-checked and grammar-checked to ensure you are happy for it to be used as is on your Website/App. We are not responsible for grammar / spelling, etc. issues with content we have not created ourselves.
5.3. We may agree with you a payment plan that allows you to pay for your website build, including some or all of the stages of design, development and delivery, over a period that we shall agree between us. In that event, you acknowledge that:
5.3.1. we will incur significant costs and expenses in delivering our website build service to you, which we will not normally recover from us unless you honour the payment plan agreed in full;
5.3.2. you will at all times remain liable to us for payment on demand of the costs and expenses incurred by us in procuring third party products and services in order to build the website and deliver our service to you.
6.1. To maintain our portfolio credentials and the integrity of any applicable copyrights, we place a “website/app by Digital Ethos” (or something similarly-worded) ‘type’ link back to our own site in the footer of all our websites, and by entering into these Terms, you agree that we may include such a statement and link in your Website/App.
6.2. We are also entitled to reproduce samples of your Website/App in marketing and or portfolio listings of previous work we have completed. We shall also update the footer of your Website/App with the current year annually each January.
6.3. We may contact you from time to time about our services, our offers, your Website/App updates, replying to queries or requests you have raised. This shall be done using appropriate communication methods. We can use SMS texts, e-mail, phone or indeed good old fashioned letters to communicate with you. You always have the right to opt-out of any or all of the communication methods we use and we will make this easy to do via each channel we operate.
6.4. We sometimes reproduce third party logos and awards on our website relating to companies our directors or staff have worked with in the past. These are not necessarily clients of Digital Ethos. Please contact us for further information should you require a reference from one of these clients.
7. Sending Material To Us
7.1. Graphics and images should be delivered to us in an organised manner, with images named appropriately, so we understand what they are and how to use them, particularly in the case of e-commerce website projects, where product listings should be delivered in organised, clearly labelled Excel spreadsheet format. All images should be delivered to us within the timescales agreed, and you understand that failure to do so may result in delays with your project and additional fees and charges by Digital Ethos. Images or graphics can be sent using our Dropbox facility ([email protected]) or another suitable file transfer method that we will specify from time-to-time.
7.2. Should your images / graphics need significant work to resize / crop / adjust them for web use; we reserve the right to charge additionally for this work where appropriate.
7.3. In the event of you not having access to original imagery and graphics for use on your Website/App, we allow for a small number of stock images to be purchased from iStock Images (or any other provider we select) as part of the design process. We reserve the right in our absolute discretion to charge additionally for stock image purchases, in which case we will notify you and seek your agreement prior to purchase.
8. Intellectual Property Rights
8.1. Where you are sending us images / graphics / text copy / video and any other media for use on your Website/App, you warrant that you either own the copyright for this content, or have obtained permission from the copyright holder and can therefore legally and reasonably use the content on your Website/App. We shall not be liable for copyright infringement related to any content we have been provided by you, your agents or representatives. The Customer will hold harmless, protect and defend us, our agents and sub-contractors against any claims arising from content delivered to us by the Customer.
8.2. By providing content to us for use on your Website/App, you warrant that the content has either been produced by you or on your behalf and that you have rights to use the content on your website. Search engines can penalise a website by de-listing it, where duplicate content appears. Should this happen, we accept no liability or responsibility for the financial consequences of this to you, and you indemnify and hold Digital Ethos harmless in this respect.
8.3. We own any photography and other images that have been sourced as part of the website or app design, unless you have been invoiced and paid for the images used on the Website/App OR you have provided original images for use on your Website/App OR you have decided to leave us and pay the appropriate leaving fee.
8.4. You own any logos that we have designed for you, assuming all the costs associated with the development of the logo have been paid in full. Any logos we create for you within our regular monthly service plans are created for web use only. If you require a copy of the logo for print use, we reserve the right to charge a fee for this where we are required to redraw the logo in a higher resolution, print-ready format.
9.1. You are solely liable and responsible for the content of your Website/App. You agree to indemnify and hold harmless Digital Ethos from any financial liability, including (without limitation) losses, damages, costs, and fines, resulting from the content of the Website/App or copy.
9.2. We shall not be liable to you, or to any third party, for any damages arising from the use or misuse of the Website/App, nor the cessation of services where you fail to meet your obligations as documented in this agreement, and you agree to indemnify and hold harmless Digital Ethos in this regard in respect of any financial liabilities, including (without limitation) losses, damages, costs, and fines, resulting for any reason from the use or misuse of your Website/App.
9.3. We reserve the right to refuse an order (including, without limitation, any applicable specification and/or proof / design request) which we believe is or may be of an illegal or libellous nature, or may be an infringement on the proprietary or other rights of a third party or is otherwise unsuitable for publication on the internet and/or any other medium.
10. Content Updates
10.1. All of our monthly service plans include a number of content updates which we will be happy to carry out on your behalf to your Website/App. The number of updates we will carry out for you depends on the monthly price plan you have signed up to. The information quoted below is indicative only. You should always contact us for up-to-date information on our pricing, as the following may be varied by us at any time:
10.1.1. £49 per month plan – 2 content updates per month, with a 6 working day turnaround.
10.1.2. £79 per month plan – 4 content updates per month, with a 4 working day turnaround.
10.1.3. £99 per month plan – 6 content updates per month, with a 2 working day turnaround.
10.2. We also agree bespoke monthly price plans with some Customers, depending on their requirements. If we have made an agreement with you outside of the price plans detailed above, we will document this clearly during sign-up and this will be specified in the Order Form.
10.3. We consider a content update to be an amendment to the content on an existing page of the Website/App such as (among other things):
10.3.1. new images to be added / removed on the Website/App;
10.3.2. existing images being amended on the Website/App;
10.3.3. new products and / or product descriptions to be added or removed on the Website/App;
10.3.4. existing products and / or product descriptions to be amended on the Website/App;
10.3.5. adding / amending / removing blog posts on the Website/App;
10.3.6. any other content update that is completed on an existing Website/App page.
10.4. If we are required to add new pages or additional functionality to your Website/App and / or update the Website/App structure, we may consider this chargeable work and not include this within your monthly update allowance. If this is the case, we will contact you prior to any work being carried out and agree an appropriate fee with you based on the work requested. For work of this ad-hoc nature we will charge a per hour fee based on our hourly rate of £60 + vat per hour.
10.5. If your requested Website/App updates cause the number of pages on your Website/App to increase above the limit allowed with your monthly website or app service plan, we reserve the right to upgrade the monthly charges for your website to the relevant upgraded monthly service plan, with your monthly payments to be adjusted in the following month pro rata. We will always discuss this with you and gain your agreement to move forward before we implement this change. If you do not wish to upgrade your monthly price plan we will be happy to remove the number of pages required from your website or app to bring its overall number of pages back in line with the website price plan you currently pay for. Our monthly price plans allow the following number of website or app pages, though this is only an indication and you should always consult with us on our latest pricing, as these may be varied by us at any time:
10.5.1. £49 per month plan – 5 pages;
10.5.2. £79 per month plan – 15 pages;
10.5.3. £99 per month plan – 25 pages.
10.6. It is not permitted to downgrade your monthly website service plan regardless of the number of pages your website or app contains over time because we invest time and energy building the website or app for you, commensurate with the price plan you sign up to when you become our Customer.
10.7. Site updates do not include creating new graphics or making structural changes to the website – for example, redesigning the layout of the home page. Such changes are chargeable and will be quoted for separately.
10.8. If you provide content to us as part of a website or app update, it is your responsibility to ensure the content is error-free (i.e. free of grammar and spelling errors, and so on), so that we can take it ‘as is’ and add it to your website or app without further revision or amendment.
10.9. Where we provide content for you as part of our website/app service, we will reasonably ensure this content is unique, error-free and suitable for posting online. You will always have the final sign-off of content we produce for you, unless you agree with us that you’d like us to post content on your behalf (for example as part of an on-going Content Marketing strategy). In the event of you reviewing content after we have posted it and you wish to make amendments to it, please get in touch with us and we will be happy to alter the relevant items.
10.10. We submit Website/Apps to search engines as part of our website/app build process, but we cannot guarantee inclusion or accept responsibility or liability if any search engine, online directory or search site submitted to, chooses not to list a Customer’s website.
10.11. Except for when we otherwise agree to different terms, all monthly plans for updates and content are provided for a minimum term of twelve (12) months, which shall be automatically-renewable annually for further periods of twelve (12) months, unless you terminate our agreement in accordance with clause 20.2 below.
11. Additional Services
11.1. The creation or editing of additional documents for use on your website, such as PDF brochures for example, is not included in our regular monthly service plans, and we reserve the right to charge additionally for our time delivering this service where appropriate.
11.2. We also offer:
11.2.1. monthly website ‘Pay As You Grow’ packages to support your business. Please see the relevant page on our website for more details. Except for when we otherwise agree to different terms, these packages are provided for a minimum term of twelve (12) months, which shall be automatically-renewable annually for further periods of twelve (12) months, unless you terminate our agreement in accordance with clauses 20.2 and 20.8 below. The provisions of clause 5.3 above shall also apply to this service; and,
11.2.2. WordPress site management, including assistance and support with technical fixes, help and advice, and other web site management tasks. These services can be offered on an ad hoc or retainer basis, and you should contact us for a quotation and terms.
12. Testing and Delivery
12.1. We build our websites using the open source Joomla, WordPress and Prestashop content management systems.
12.2. You are ultimately responsible for checking the correctness of the site before you give us permission to make the site publicly available. This includes testing web forms to ensure enquiries are processed by the Website/App and delivered to your selected email address.
12.3. When you agree that the Website/App can be made publicly available, you are agreeing that the design and development of the Website/App has satisfied all of your requirements, and any payment terms related to “go-live” shall then be triggered and invoiced in accordance with our agreed terms.
13. Hosting & Backups
13.1. We host all our Website/Apps with Justhost.com at their dedicated data-centre, on a shared platform. This means your Website/App exists alongside other websites we host for other Customers. Dedicated server platforms are available upon request. This service would incur additional setup and monthly charges.
13.2. We have selected a reputable award-winning website hosting partner and we review this choice of partner from time to time to ensure we deliver the best value and quality mix of website hosting for our Customers. We are not required to notify our Customers or website hosting provider changes unless that hosting provider change would result in us hosting Customer data outside of the EU.
13.3. Whilst we endeavour to ensure your website is live and protected 100% of the time, due to the open public nature of the web, this is not something we can guarantee. From time to time hacking attempts can mean website servers go offline, or indeed our hosting partner can experience technical difficulties which results in a loss of service for our Customers. We will work hard to ensure we communicate any such issues to our Customers as and when they occur, and work even harder to ensure service is restored in a timely manner.
13.4. We shall not be responsible for any loss of business, loss of profits, any loss of digital data or any other damages related to website downtime / loss of website service or website security attacks or breaches.
13.5. We shall not be responsible for any loss of business; loss of profits or any other damages related to payment gateway outages where we provide e-commerce facilities for our Customers.
13.6. We backup all our websites weekly or daily within the justhost.com infrastructure.
13.7. All of our websites are hosted only on our servers and our platform. We do not allow websites we charge a monthly service fee for to be hosted on servers not under our direct control. In this manner, we can ensure quality of service is maintained, backups are carried out effectively and our Customer’s websites remain protected and managed.
13.8. If we are contracted to build a website for you, and it will be hosted on a platform other than our own, we shall not be responsible for backups, maintenance, warranties, failures or any other issue with the website once we have delivered the completed website to you and the website has been placed live on the web.
13.9. We allow a two (2) week grace period from the point of Go-Live to deal with any issues you may have with your new website when it is hosted on another platform. If the issues experienced are platform-related, we reserve the right to charge a fee to provide assistance and manage the issues where appropriate.
13.10. If we have not built a website for you and it is not hosted on our platform, but we are contracted to provide maintenance services in the form of content updates, we will perform those updates in accordance with our agreement. We will not, however, be responsible for backups, technical maintenance, software upgrades or any other “non-content update” type work. We shall also not be responsible for hacking / security measures or any other items that we would normally cover should the website be hosted on our own platform.
13.11. Except for when we otherwise agree to different terms, hosting services are provided for a minimum term of twelve (12) months, which shall be automatically-renewable annually for further periods of twelve (12) months unless you terminate our agreement in accordance with clause 20.2 below.
PART III: DIGITAL SERVICES AND CONSULTANCY
14. E-mail Services
14.1. We provide robust professional e-mail services using Google Apps Professional. Google Apps delivers a range of features and benefits that makes it the premier e-mail tool for use in business today. All our e-mail accounts can be set up to deliver e-mail to any device.
14.2. We charge £60 + VAT per individual user e-mail account you would like. This charge may be subject to variation from time-to-time, so please check pricing with us before arranging this service. We will then configure Google Apps to work with your domain so your e-mail address would be of the format – [email protected]
14.3. Our fee in clause 14.2 above includes up to five (5) e-mail addresses per user account. Additional e-mail addresses for the same user account will be charged on a monthly retainer basis (our current fee being £53.00 per month per e-mail account, unless we set-up the account(s) via Google Apps for Business, in which case payments are made directly by you to Google at their current rate), which shall be for a minimum term of twelve (12) months (except for when otherwise agreed between us), automatically-renewable for further periods of twelve (12) months, unless you terminate our agreement in accordance with clause 20.2 below. .
14.4. During the set-up process, we require your credit or debit card details in order to enter these into Google’s invoicing system, so that you are charged for Google’s services. Google will then bill your bank card directly for its ongoing monthly service fees, which are in addition to our fees.
14.5. We do not charge a management fee for e-mail services on an ongoing basis and we do not support e-mail via Google Apps on an ongoing basis. We will always aim to help where we can, but our responsibility stops when the e-mail address has been set up online and is working correctly for you.
14.6. We do not offer an e-mail setup service for certain e-mail clients such as Outlook, Thunderbird and MacMail. Please check with us on the availability of our service for your application software prior to the set-up process.
14.7. Where Google Apps Professional is not the e-mail provider, you should not use our professional e-mail services to send unusually high volumes of e-mails or for campaigns based on bulk or unsolicited email. If, in our reasonable judgement, you do so, we reserve the right to charge you an additional fee on an hourly basis to remediate any disruption caused to our systems or other websites hosted on our server. Our current rate is £50.00 plus VAT per hour.
15. Consultancy – Digital Marketing / Content Marketing / Search Engine Optimisation Services (SEO) / Pay-per-click Management (PPC)
15.1. We offer consultancy and retained services in Digital Marketing, Digital PR, Content Marketing and Search Engine Optimisation. These services are offered on either a retainer basis, at an agreed monthly rate to be negotiated between us, or on an ad hoc basis, at a fee to be agreed between us.
15.2. Our services in clause 15.1 above are subject to a minimum term of twelve (12) months, which (except for when we agree with you otherwise) shall be automatically-renewable annually for further periods of twelve (12) months, unless terminated in accordance with clause 20.2 below.
15.3. We shall use our experience of digital marketing to deliver your marketing objectives with reasonable care and skill, taking into account the Service plan you have signed up for, market conditions, competitor analysis and overall marketing strategy timelines.
15.4. We shall act as a strategic consultant in respect of the management of online affairs for your Website/App(s) as agreed and within the agreed remit of our work.
15.5. We assume we shall have access to manage and update the web analytics account(s) for your Website/App(s) and that you shall grant us administration rights to those management tools we need in order to carry out our duties on your behalf.
15.6. Due to the nature of online marketing, time shall not be of the essence in the performance of our Services and in carrying out our activities on your behalf.
15.7. We shall have the right to make any changes necessary to the Services we offer within our Online Marketing price plans from time-to-time to ensure optimum performance for the budget allocated. Search engine technology and priorities alter frequently and we aim to ensure our work is providing the best return for our customer’s investment. With this in mind, we sometimes need to change the kind of services we offer within a certain price plan. This clause allows us to do that. We will always inform you of this where applicable.
15.8. If you make changes to your own website and this materially impacts our ability to achieve your online marketing objectives, we reserve the right to put right what has been changed and may charge an additional fee for this work, depending on the remedial time requirement. Please check with us if you are unsure if a certain alteration to your site will impact the online marketing work we do for you.
15.9. Digital Ethos is an online marketing agency and may rely on third parties to perform the services. Digital Ethos is not responsible for the performance of such services by third parties.
15.10. In order for us to do our job and deliver upon your Online Marketing objectives, we need you to agree the following:
15.10.1. You shall co-operate with us in all matters relating to the provision of our Online Marketing services, where we need your support. This shall include (among other things),sharing your login details and access codes with us, Google address verification and some other information in order to move forward.
15.10.2. You shall provide us with information and materials we may need or request from time-to-time in order to reasonably carry out the delivery of services for you.
15.11. In the event you do not comply with clause 15.10 above, then the procedures set out in clauses 3.3 and 3.4 above will apply.
16. Content Writing
16.1. We will also write creative content for your website or app, or post up content that you have written. Our fees for this will be chargeable on an hourly basis, at a rate we will agree with you beforehand, but we can also offer fixed rates for ad hoc tasks and projects.
16.2. Where we write the content for you, we will send you a draft for review and feedback prior to posting the content. It is your responsibility to check this content for accuracy. We will not be liable for errors in the content, whether orthographical, grammatical, syntactical or relating to the content or otherwise.
16.3. We assume 2-3 drafting rounds, which is usually sufficient for our Customers. If we need to provide further and additional drafts over and above this, then we reserve the right to charge additionally for our time for doing so. We will only ever do this with your agreement. This clause is designed to provide a reasonable and fair boundary regarding the time we will commit to the drafting of content.
16.4. Should you not respond to us as per clause 16.2 or clause 16.3 above, then the procedures set out in clauses 3.3 and 3.4 above will apply.
PART IV: PAYMENTS & REFUNDS
17.1. We will only accept recurring payments using our GoCardless Direct Debit management system. We reserve the right to charge an administration fee for recurring payments that are not processed in this manner. This fee is currently £20.00 + VAT per payment, though we reserve the right to vary this fee at any time.
17.2. One-off payments can be made by online bank transfer (ensuring you use the invoice number as a reference), or a one-off Direct Debit payment using our GoCardless direct debit management system.
17.3. When you agree to become our Customer, we will send you a copy of these Terms and a link to our Direct Debit system. We will not commence your project until the Direct Debit mandate has been completed online AND we have received email confirmation of your acceptance of our Terms.
17.4. Our invoices are issued only by e-mail and to the e-mail address you specify upon signing up with us. It is your responsibility to ensure invoices are settled within our payment terms to enable us to continue service delivery.
17.5. Payments are due at the date they are invoiced and shall be made no later than fourteen (14) days from the invoice date and / or in accordance with the Direct Debit payment schedule agreed when you become our Customer.
17.6. We reserve the right to increase our monthly service fees by a sum which reflects reasonable increases in the costs we incur to deliver services to our Customers, in line with changes to the UK Retail Price index. We shall not increase costs any more than once in any twelve (12) month period, nor at all in the first year of your agreement with us. In any event, the increase in monthly service fees shall not exceed six percent (6%). If we do this we will notify our Customers by e-mail and contact you to update your Direct Debit mandate with us where appropriate.
17.7. For some projects where a set-up fee is involved, we will agree with you the payment terms for that set-up fee. Our standard payment terms for website build projects are 70% upon sign up and 30% upon Go-Live of the website project. If we agree something different with you, this will be documented clearly on our agreement e-mail and also upon your first invoice. If your project does not involve the build of a website, but does involve a set-up fee, the set-up fee will depend on the complexity of the project.
17.8. Where appropriate, and at our absolute discretion, we offer instalment payment options which can be spread over a period of up to eighteen (18) months, the payment schedule to be agreed between us prior to commencing work. This is also subject to payment by you of a minimum upfront instalment of a sum equal to thirty percent (30%) of the agreed total fee for the project.
17.9. We offer pay-per-month-websites, at rates to be agreed between us. This includes some support hours per month (defined on a job-by-job basis), as well as hosting, CMS training, domain and e-mail setup.
17.10. Where we are asked to undertake custom or bespoke development or digital work, we may agree to invoice you on an hourly, weekly or monthly hire basis, as appropriate. For custom jobs, we appreciate you will need to understand how long the work is likely to take, so that you can plan and budget accordingly, and so we will give you our best estimate on the timeframe required to complete the work, however we cannot be held to this as delays can occur due to changes in your specification. If you ask for changes or new features, or similar, or there is a delay in you providing us with feedback, the work can be delayed. If this happens, we will continue to periodically invoice you according to the agreed terms until such time as the work is completed or you cancel the job in accordance with clause 20 below.
17.11. All amounts payable by you under these Terms are exclusive of amounts in respect of Value Added Tax (‘VAT’) chargeable for the time being. Where any taxable supply for VAT purposes is made under these Terms by Digital Ethos to you, you shall, on receipt of a valid VAT invoice from us, pay us such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
17.12. You shall pay all amounts due under these Terms in full without any deduction or withholding except as required by law and you shall not be entitled to assert any credit, set-off or counterclaim against Digital Ethos in order to justify withholding payment of any such amount in whole or in part. We may, without limiting our other rights or remedies, set off any amount you owe us against any amount payable by us to you.
17.13. Acceptance: By agreeing with Digital Ethos to Go-Live with your website, you accept that the brief has been met and that all future changes must under-go a formal change control request from you and may incur additional charges, unless otherwise agreed between both parties.
17.14. We will support any issues with previously specified website functionality or design for up to fourteen (14) days after the website Go-Live date, after which time all changes, must under-go a formal change control request and may incur additional charges OR those changes form part of a website service plan if that has been agreed as part of your contract with us.
17.15. When a website is live on the internet we deem it to have “Gone Live” which means the final Go-Live payment of any agreed set-up fee is then due for invoicing and payment.
17.16. Failure to provide us with information does not permit you to delay or cease payment, unless specifically agreed with us. Unless otherwise agreed, you will continue to be invoiced each month until the website is live and will receive no refunds for a delay in getting the website live where that delay is not within our control and is outside of what we consider fair and reasonable timescales for the delivery of the website.
18. Late Payments
18.1. Without limiting any other right or remedy of Digital Ethos, if you fail to make any payment due to us under these Terms by the due date for payment, we shall have the right to charge interest on the overdue amount at the rate of five percent (5%) per annum above the then current Bank of England base lending rate accruing on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
18.2. Without limiting any other right or remedy of Digital Ethos, if you fail to make any payment due to us under these Terms by the due date for payment, we shall have the right to suspend all services being provided by us until such payment has been made and cleared in full.
18.3. If at any time you default on your payment agreement with us, we will make every effort to contact you to inform you that you are behind with your payments. If we have contacted you and you have not rectified the situation within what we consider to be a reasonable period of our initial notification, we reserve the right to commence our debt recovery process, in which case we shall pursue you for:
18.3.1. all outstanding fees and costs (including those that accrue during debt recovery); and,
18.3.2. any other outgoings and expenses we have incurred in providing our service, where these exceed the fees and costs that would otherwise be recoverable from you.
18.4. Our debt recovery process involves a number of steps; some of the steps may not be relevant to you as they are dependent on the services we provide you with.
18.4.1. “Hosting Only Plan” – if we host a website for you on our servers and you have failed to make a payment for the hosting service for two (2) consecutive months, we may issue you with a fourteen (14) day website suspension notice.
18.4.2. “Website/App Service Plans” – if you have signed up to one of our website service plans where we build, deliver and maintain your website for a monthly fee, and you fail to make two (1) or more consecutive monthly payments, we may issue you with a website suspension notice.
18.4.3. “Build Only Plans” – if we have built a website for you for a one-off fee and no further monthly charges are due, and you have failed to make full or partial payment for the website, we retain ownership and copyright of the website work until all monies due as part of the project have been paid to us. At that point all copyright and ownership of designs / logos and content shall pass to the Customer.
18.5. If we issue you with a website suspension notice, this means you will have fourteen (7) working days to rectify an adverse payment situation with us or we will disable your website and remove it from public view on the web. We will only re-instate your website once payment has been made in full and has cleared to our bank account. We will also charge an administration fee to cover the cost of removing and then re-instating your website. This is currently £250 + VAT, though we reserve the right to vary this amount at any time.
18.6. Following our issuing of a website suspension notice, we will keep your website on our servers for thirty (30) days, after which time we reserve the right to delete the website from our servers. We shall not be liable for any claims for any losses, material or implied, of any kind, from a situation where we have removed your website from the internet for reasons of non-payment of monies owed to us, and you agree to indemnify and hold harmless Digital Ethos in this regard.
19.1. If we buy a domain name on your behalf, then we own that domain, until you have paid the cost of this domain name plus our administration charge. We charge for the cost of the domain name from a reputable online marketplace (currently NamesCo.) and a £20 + VAT administration fee to cover our costs in processing this order, though we reserve the right to vary our fees at any time. You are free to purchase your own domain name, but you then need to provide us with access to the DNS control panel when we need it in order to make your website live OR you undertake to update your DNS control panel yourself using the IP address information that we will provide. We shall not be liable any damages related to loss of website or e-mail services that result from incorrectly applied DNS updates.
19.2. If you ask us to purchase a domain on your behalf and request to be invoiced, you also agree to accept subsequent invoices when the domain renewal is due. In order to ensure continuity of service, we will not notify you in advance of domain name renewal invoices being issued and make the assumption that you wish to have the domain name renewed unless we have been given notice in writing of your intention to not renew the domain name.
19.3. In all cases, where you have paid for a domain for a specific period, you own the domain and you are free to transfer it away from us at any time. We may charge an administration fee for the domain transfer service (currently £50 + VAT), depending on the circumstances and work required to effect the transfer. This domain transfer fee shall not be unreasonable and shall be to cover our administration costs in carrying out this process.
19.4. If we renew a domain on your behalf and you subsequently fail to pay the domain renewal fee by the due date, we will then take ownership of the domain.
19.5. If you have purchased your own domain name and we do not manage it for you within our NamesCo platform, you are responsible for the renewal of the domain in a timely manner to ensure your website service remains unaffected at renewal time.
20. Termination and Refunds
20.1. We reserve the right to terminate our agreement with you and our services to you at any time on reasonable notice, for any reason or no reason. Should we do so, we discuss and seek your agreement to arrangements for a handover of services and, if the terms of our agreement allow, a refund to you of fees and expenses paid for products or services not yet delivered.
20.2. If you would like to terminate your agreement with us pursuant to these Terms, you are required to give us a minimum of thirty (30) days’ notice, in writing by either e-mail to [email protected] or letter addressed to the Managing Director at our registered office address. A termination letter must be sent to us by signed-for post or special delivery and you must be able to provide evidence of this on request. A termination e-mail should come from an e-mail address you have previously registered / used when contacting us, and you must request and obtain from us an automated or non-automated receipt, and be able to produce this on request, as confirmation of delivery. Where clause 5.1, 10.11, 11.2, 13.11, 14.3 or clause 15.2 above applies, the period of notice shall be sixty (60) days, to expire at the end of the current term.
20.3. Any invoices that are issued or due to be issued within the notice period shall still be valid and due for payment in the normal way. We will confirm the date upon which we will cease your services upon receipt of your written notice to us.
20.4. We do not offer refunds on services that have already been commenced (and for the avoidance of doubt, ‘commenced’ shall include any initial planning sessions, campaign strategy meetings, conferences or telephone meetings and similar). If you have paid for an item in advance and then later wish to cancel the delivery of that service before it is delivered, and assuming we have not expended time related to your work, we will consider an application for a refund in a fair and reasonable manner. Where a refund is agreed, we will also endeavour to deliver a refund to you within a reasonable timeframe. Any refunds we may agree to pay will be less any costs or administration charges we may incur during the process (including, but not limited to, PayPal payment fees, direct debit processing fees and / or other bank charges).
20.5. If you need our help moving your website over to another provider, we reserve the right to charge for our time in facilitating this process (our current hourly rate is £60 p/h + vat). We shall not under any circumstances be obligated to move a website onto a hosting platform that we do not manage or control, and this service will be provided in our absolute discretion (unless we have agreed to do so as part of your project).
20.6. If you move your website to a hosting platform that we do not manage or control, even if we agreed to carry out the move and installation for you, we shall not be responsible for the management of that server, backups of the website, and any anti-hacking security services, nor shall we be able to assist with any hosting or performance-related issues for websites on platforms that we do not manage. All responsibility for the management and security of any customer data held on your website, then passes to you and your new provider.
20.7. Where we provide e-commerce functionality for your website and provide a Digital Ethos SSL certificate upon which security of the data transfer between the website and our server is encrypted and you wish to move your e-commerce store to another platform, you shall then be responsible for the purchase and installation of an alternative SSL certificate for use to encrypt the data moving between your new servers and the customer’s computer as they view the website.
20.8. Where you are a customer of our monthly website service plans, we will then turn off the Website/App for you on the agreed future date and, (subject to payment by you of additional fees that may accrue under clauses 20.5 and 20.6 above).
PART V: GENERAL TERMS
21. Law and Jurisdiction
These Terms shall be subject to English law and, subject to clause 22 below, the parties to these Terms submit to the exclusive jurisdiction of the courts of England & Wales.
22. Dispute Resolution
22.1. The parties shall attempt to resolve any disagreement, dispute or controversy arising out of or relating to this contract through informal negotiation, between the principals of the parties who have authority to settle the same.
22.2. If the matter is not resolved by negotiation within thirty (30) days of receipt of a written ‘invitation to negotiate’, the parties will hold a dispute resolution meeting at an agreed location in a good faith effort to resolve the matter.
22.3. If the matter is still not resolved within a further thirty (30) days of the meeting in clause 22.2 above, then the parties will attempt to resolve the dispute
in good faith through an agreed non-binding form of Alternative Dispute Resolution (ADR), or in default of agreement, through a non-binding ADR procedure as recommended to the parties by the President or the Vice President, for the time being, of the Chartered Institute of Arbitrators.
22.3. If the matter has not been resolved by a non-binding ADR procedure within sixty (60) days of the initiation of that procedure, or if any party will not participate in an ADR procedure, the dispute may be referred to arbitration by any party, the outcome of which shall be binding (save in the case of manifest error). The seat of the arbitration shall be England and Wales. The arbitration shall be governed by both the Arbitration Act 1996 and Rules as agreed between the parties.
22.4. Should the parties be unable to agree on an arbitrator or arbitrators, or be unable to agree on the Rules for Arbitration, then clause 22.3 above shall not apply.
22.5. Nothing in this clause shall be construed as prohibiting:
22.5.1. a party or its affiliate from applying to a court for interim injunctive relief; and,
22.5.2. the use of litigation for the recovery of fees owed to us by you, which we may pursue without recourse to the dispute resolution procedure in this clause 22.
23. Changes to Terms
These Terms are regularly reviewed and for that reason may be updated from time-to-time. In the event of any changes, Customers will be notified by e-mail to the e-mail address provided when you sign-up with us. We will deem notification by e-mail “delivered” at the point we send an e-mail to your registered e-mail address, irrespective of whether the e-mail is received, you will be deemed to have been served notice of the changes to these Terms contained therein.
24. No Waiver
No failure or delay by any party in exercising its rights under these Terms shall be deemed to be a waiver of any of those rights.
If any provision of these Terms is deemed unlawful, void or for any reason unenforceable then that provision shall be deemed severable from these Terms, but the parties agree that this shall not affect the validity of the other Terms and the other Terms shall not be considered void or invalid as a result.
26. Force Majeure
Neither party is liable to the other for failure to perform their obligations if the failure is due to unforeseen circumstances, beyond reasonable control. Some examples of unforeseen circumstances (but not an exhaustive list) are war, riot, explosion, abnormal weather, an act of God, fire, flood, strikes, lock-out, government action or regulation (UK or otherwise) or accidents. In such circumstances we shall be entitled to suspend or cancel the service without prejudice to any rights which have accrued to us prior to termination.
27. Estimated Delivery Times
Any timescale indicated by us for the delivery of all or any of the goods and/or performance of all or any of the services is an estimate only and shall be treated as such, and time shall not be of the essence. We shall not be liable for any failure to meet any such estimate, nor any loss, of whatever nature, resulting directly or indirectly from such failure.
28.1. We may in our absolute discretion use agents and sub-contractors under our reasonable supervision for any or all work from time-to-time or in the entirety of the project.
28.2. We operate a flexible ‘home-working’ policy, which means staff and contractors are free to work from either our office or their own location. You acknowledge and agree that we and our staff may work in this way when carrying out work for you.
29. Data Protection
29.1. All our website data is hosted within the EU or the USA.
29.2. The hosting services we use may hold Customer personal data outside of the EU and therefore this data is not subject to only EU data protection laws and regulations.
29.3. If you would like to see a copy of the data we hold about you at any time, please make your request in writing to the Data Controller at our registered business address. We reserve the right to charge an administration fee where appropriate, which shall not exceed the sum of FIFTY POUNDS (£50.00).
30. Security Considerations
30.1. In order to help protect against hacking attacks, we use multiple levels of authentication to access our websites in order to perform edits and content updates. We are happy to provide you with access to your website so you can edit it within the Content Management System (CMS), where appropriate.
30.2. If we give you passwords and security login details to gain access to your Website/App, it is your responsibility to ensure these login credentials are kept secure and secret. If you feel at any point that these details have been compromised, please let us know immediately by calling our support team by emailing us ([email protected]).
30.3. You should ensure that you maintain secure passwords for the systems we provide to you. We reserve the right to charge for website re-instatement from backups should a successful hacking attempt on your Website/App be traced back to use of either an insecure password and / or ineffective website security procedures on the part of the Customer.
30.4. To ensure secure passwords are used to access your Website/App, we recommend you use “Random Password Generator” (http://www.random.org/passwords/), set to a minimum of 10 characters.
30.5. Under no circumstances should you give your website login passwords to a third party. Doing so breaches our Terms.
30.6. If you need to enable access to your Website/App to a third party, (such as an SEO contractor or another member of your team) please request an additional user to be set-up on your Website/App by contacting [email protected] and outlining your request, the details of the third party and why you would like to enable access for them.
30.7. If you or a third party you have caused damage to your website by applying an update or change and we subsequently need to repair the website, we reserve the right to charge you for this work.
30.8. We will at all times maintain the confidentiality of your source materials, technical and marketing plans, and all other sensitive information, whether they are sent to us by you or a third party on your behalf.