Terms & Conditions - Red Giraffe

Introduction

1. Outline of Work:

1.1 Client is hiring Red Giraffe Marketing Ltd, henceforth referred to as ‘Red Giraffe’ to develop a new web site as outlined in our previous correspondence.
1.2 Your project will includes everything as detailed in the Scope Of Services document.

2. Definitions and Interpretation:

2.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Client” means you, the individual, firm or corporate body purchasing the Services. Where an individual is entering into this Contract on behalf of a business, the individual confirms they have the authority to do so and to contractually bind that business and the business shall be the Client in the context of this Contract;

“Contract” means the contract formed as detailed in clause 2, which includes the acceptance of these Terms and Conditions;
“Quotation” means the written quotation provided by us to you, which unless otherwise stated, remains open for acceptance for a period of 30 days and constitutes our entire scope of works; and

“Services” means the web design, hosting, and/or any other services provided by us to you.
2.2 Unless the context otherwise requires, each reference in these Terms and

Conditions to:
1. 2.2.1 “we”, “us”, “our” is a reference to the Agency and includes our
  
  employees and agents;
2. 2.2.2 “you” and “your” is a reference to the Client and includes your
  
  employees and agents;
3. 2.2.3 “writing” and “written” includes emails and similar transmissions;
4. 2.2.4 a statute or a provision of a statute is a reference to that statute or
  
  provision as amended or re-enacted at the relevant time;
5. 2.2.5 “these Terms and Conditions” is a reference to these Terms and Conditions as may be amended or supplemented at the relevant
  
  time;
6. 2.2.6 a clause is a reference to a clause of these Terms and Conditions;
7. 2.2.7 a “Party” or the “Parties” refer to the parties to these Terms and
  
  Conditions.
2.3 The headings used in these Terms and Conditions are for convenience

only and shall have no effect upon their interpretation. Words imparting the singular number shall include the plural and vice versa. References to any gender shall include the other gender. References to persons shall include corporations.
2.4 No terms or conditions stipulated or referred to by you in any form whatsoever shall in any respect vary or add to these Terms and Conditions unless agreed by us in writing.

3. The Contract

3.1 We will provide you with a written Quotation for our Services. The acceptance of our Quotation, electronically or otherwise, or the placement of an order, creates a legally binding Contract between you and us, and includes the acceptance of these Terms and Conditions, which will apply between us.
3.2 You are responsible for the accuracy of any information you submit to us and for ensuring that our Quotation reflects your requirements. Our Quotation is based on the information provided to us at the time we prepare it. If any errors or discrepancies become evident, we reserve the right to make adjustments to it.
3.3 You agree to provide us with any information, advice and assistance as we may reasonably require within sufficient time to enable us to perform the Services. However, any timescales we provide are a guideline only and are not of the essence of the Contract.

4. Website Design: The following clause applies if we are providing website design Services only.

4.1 Web design Services will either be on a standard site purchase basis, or a monthly rental agreement.
4.2 If you have opted for our standard site purchase basis:

4.2.1 35% of the quoted fee is due upon acceptance of our Quotation,

35% shall be payable upon the production of designs to be signed off by you, and the final 30% payment shall be due once we have completed our services or after 60 days, whichever comes first. No

further works shall be carried out until each stage payment is received and the website shall not be launched until we have received final payment. We shall not be liable for any delays where your payment obligations have not been complied with.

4.2.2 However, we reserve the right to charge additional interim progress payments as the works progress. We also reserve the right to request 100% of the quoted fee up front at our sole discretion. In either event, we will notify you accordingly in advance.

4.2.3 We reserve the right to abandon the project and invoice you the remainder of the quoted fee 60 days after the contract formation, or after 30 days of receiving no contact from you, regardless of the project status, this shall be immediately due and payable.

4.3 If you have opted to rent your website on a monthly basis:
1. 4.3.1 You will be required to pay a set-up fee up front before our Services can begin. Payment will then be due, monthly in advance, for a minimum term of 24 months. After that time, it will be automatically renewed, with the exception of the price, on the same terms and conditions as set out in the Contract, on a rolling monthly basis, unless a written notice to terminate is given by
  
  either party in accordance with clause 8 below.
2. 4.3.2 Your website must be hosted by us during the minimum Contract
  
  term, and your hosting charges will be included in the monthly rental fee. You are required to set up and maintain a standing order for the duration of the Contract.
4.4 We will provide you with up to three design concepts in accordance with the brief received from you, which must be signed off before we commence building the site.
4.5 Any alterations required after approval of the design, any changes to the brief or any additional visits required above the allowance included for in the Quotation will be chargeable at our standard rate applicable at the time.
4.6 We can provide copy and source images for the website if we have included for this in our Quotation. Otherwise, you will be required to send us all logos, copy and graphics to be included on the website, in the agreed format.
4.7 It is your responsibility to check for mistakes, including spelling and grammar mistakes, at all stages and we accept no responsibility for the same.
4.8 We design our websites using editable platforms. Once the website goes live, we will provide you with a login to access your site. This will enable you to edit the text and images on certain pages. However we do not recommend editing the header or footer, any CSS or core PHP files, or adding, removing or updating any plugins or content management systems, unless otherwise agreed, to avoid errors being made.
4.9 All proprietary rights in the website remain with us throughout the term of the Contract. You must not:
4.9.1 attempt to copy, modify, duplicate, create derivative works from or

mirror all or any part of the website;
4.9.2 attempt to reverse compile, disassemble, or reverse engineer all or

any part of the website; or
4.9.3 attempt to obtain, or assist third parties in obtaining, access to the

website other than as provided under this clause 3.

5. Website Hosting and Maintenance: The following clause applies if we are providing website hosting and/or maintenance Services:

Payment for web hosting and/or maintenance Services is due monthly in advance, upon receipt of invoice. You may be required to set up and maintain a direct debit for the duration of the hosting Contract; this may be through a third party direct debit service such as GoCardless; a separate contractual relationship will be created between you and the third party and we cannot be held liable for any errors, actions, omissions or incorrect charges that may be made by the third party.
The Contract for any web hosting and/or maintenance Services will be on a monthly rolling basis, unless a written notice to terminate is given by either party in accordance with clause 8 below.
We will use our best endeavours to ensure the web hosting Services are uninterrupted, and we shall monitor for downtime and endeavour to resolve issues as soon as reasonable possible upon becoming aware of such issues. However, we will be under no liability to refund the hosting fees for any period of downtime encountered.
In addition, we cannot be held responsible for events that occur outside our control, including, but not limited to, your domain not pointing to our servers, loss of data and hacking. You are responsible for keeping your own passwords secure, adequately strong and for backing up any images and data you have added on the website.
Where we are providing maintenance we shall back up your site regularly in accordance with industry standard, should you cease to have a maintenance contract with us, it shall be your responsibility to store all
Our hosting services are governed by a Fair Use Policy to ensure the quality and integrity of the service we provide to all our customers. Under this policy, we allocate a monthly bandwidth usage limit of 100GB per month for each account. This is to ensure that our shared hosting resources are distributed fairly among all users.
Your use of the hosting services will be monitored to ensure compliance with this Fair Use Policy. If your bandwidth usage exceeds the allocated limit within any given month, we will consider this to be a violation of our Fair Use Policy.
In the event that your bandwidth usage exceeds the Fair Use limit, we reserve the right to: Notify you of your excessive usage and potentially offer alternative service options that will accommodate your bandwidth needs, including, but not limited to, upgrading to a higher-tier plan with additional costs. Implement limitations on your account’s bandwidth speed and availability to other services until the start of the next billing cycle. If excessive bandwidth usage is continued or repeated after notification, take any action we deem necessary, including but not limited to, suspension or termination of your hosting service account without liability to us.

Data from your site before you cancel the contract.

We require the site to be launched on our servers to test for issues. However, if you wish to use another hosting provider, you shall be under no obligation to stay with us after the launch. We may charge a set-up fee to transfer the site to your new provider, which we will notify you of in advance. We cannot be held liable for the actions or inactions of any other hosting provider, inclusive of any technical issues outside of our control due to the transfer.
During the first 6 months after the launch of your site, we warrant that the site will perform as expected. Subject to the performance of your obligations in accordance with clause 6.1, should any part of the site break during this period, we shall repair the site free of charge. Where your site has been hacked or broken during this period and you have not backed up or updated the site, all work involved in repairing the site shall be chargeable. If you have not agreed to our maintenance package after the period of 6 months is over, all repairs to the site shall be chargeable.

6. Fees

6.1 All invoices are payable within 7 days from the date of invoice, unless otherwise specified. All payments made to us, including deposit payments, are non-refundable.
6.2 You agree to pay for any additional services provided by us that are not specified in the Quotation. These additional services shall be charged in accordance with our current rate in effect at the time of the performance or such other rate as may be agreed.
6.3 All sums payable by either Party are exclusive of VAT or any other taxes on profit, for which that Party shall be additionally liable. All payments shall be made in pounds sterling without any set-off, withholding or deduction except such amount (if any) of tax as you are required to deduct or withhold by law.
6.4 The time of payment shall be of the essence. If you fail to make any payment by the due date then, without prejudice to any right which we may have under to any statutory provision in force from time to time, we shall have the right to suspend the Services, shut down your website and reuse the domain name (where applicable) and charge you interest at a rate of 8% per annum above the Bank of England base rate from time to time, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall be calculated on a daily basis and will accrue after as well as before any judgment.

7. Your Responsibilities

7.1 You agree, where applicable, to:

8.2 If, due to circumstances beyond our control, we have to make any change in the arrangements relating to the provision of the Services, we will notify you immediately. We will endeavour to keep such changes to a minimum and will seek to offer you arrangements as close to the original as is reasonably possible in the circumstances.

8.3 Any agreed variation or amendment will be carried out in accordance with these Terms and Conditions and any price increase required as a result of an agreed variation or amendment will be payable in accordance with the terms for payment above.

8.4 Either Party has the right to terminate the Services immediately if the other Party:

8.4.1 has committed a material breach of this Contract unless such breach is capable of remedy, in which case the right to terminate immediately will be exercisable if the other Party has failed to remedy the breach within 14 days after a written notice to do so; or
8.4.2 goes into bankruptcy or liquidation either voluntary or compulsory (save for the purposes of bona fide corporate reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets.

8.5 In the event of termination for your default, all payments required under this Contract shall become due and immediately payable.

8.6 Any and all obligations of the Parties which either expressly or by their nature continue beyond the termination, cancellation or expiration of this Contract shall survive termination under this clause 8 on a pro-rata basis.

9. Cancellation and Termination

9.1 Subject to clause 8.4, where we are providing Services in accordance with clause 3.2, any website design services cannot be cancelled after the Contract is formed. In the event of cancellation, you will be required to pay the total quoted fee, which will become immediately due and payable. Upon receipt of payment, we will hand over all works completed by us up to the date of cancellation in relation to the Contract.

9.2 Subject to clause 8.4, where we are providing our Services under clause 3.3, either Party has the right to terminate the Contract after the expiry of the minimum term by the giving of 1 months’ written notice, whereby at the end of the term, there will be no continuing liability by either Party.

9.3 Either Party has the right to terminate the ongoing hosting Services by the giving of 1 months’ written notice.

9.4 Either Party has the right to terminate the Services immediately if the other Party:

9.4.1 has committed a material breach of this Contract unless such breach is capable of remedy, in which case the right to terminate immediately will be exercisable if the other Party has failed to remedy the breach within 14 days after a written notice to do so; or

9.4.2 goes into bankruptcy or liquidation either voluntary or compulsory (save for the purposes of bona fide corporate reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets.

9.5 In the event of termination for your default, all payments required under this Contract shall become due and immediately payable.

9.6 Where we have abandoned the project in accordance with clause 3.2.3, we may allow for the project to be restarted, subject to a 10% restart fee, this shall be in accordance with our current availability.

9.7 Any and all obligations of the Parties which either expressly or by their nature continue beyond the termination, cancellation or expiration of this Contract shall survive termination under this clause 8 on a pro-rata basis.

10. Guarantee

10.1 We offer a satisfaction guarantee for our Services. If we are unable to create a design you love, we’ll refund your money in full.

10.2 This guarantee is subject to:

10.2.1 Client must allow Red Giraffe ample and fair opportunity to amend

or re-draw initial website designs
10.2.2 Client engaging in constructive communication and feedback in

order to come up with a suitable design
10.2.3 Client giving clear and concise feedback and instruction on what

would lead to their full satisfaction.

10.3 We accept no liability in respect of damage due to causes beyond our

control including, but not limited to, accident, neglect, misuse, faults or premature deterioration which result from the Client’s failure to comply with our maintenance and marketing instructions.

11. Confidentiality: Each Party undertakes that throughout the duration of the Contract, the Parties may disclose certain confidential information to each other. Both Parties agree that they will not use the confidential information provided by the other, other than to perform their obligations under this Contract. Each Party will provide us with suitable and sufficient material and images to enable us to perform the Services;

ensure all content uploaded by you or your employees, or provided to us, is suitably backed up, virus-checked and thoroughly proofread for mistakes; update, back up, maintain and optimise the site where you have not taken up a maintenance contract with us in accordance with clause 4;

virus-check all data and material supplied to us and ensure it is backed up regularly; ensure any staff are trained in the proper use and operation of any system provided by us;

not edit the header or footer, any CSS or core PHP files, or add, remove or update any plugins or content management systems, unless otherwise agreed; keep secure from third parties any passwords we may issue to you; nominate a suitably qualified individual to act as your representative to liaise with us regarding the Services. This individual needs to be a decision-maker within the company; and obtain and maintain all necessary licences, permissions and consents in connection with the Services.

7.2 If you our other rights or remedies, we shall:

7.2.1 have the right to suspend performance of the Services until you fail to meet any of the provisions of this clause 6, without limiting remedy the default;

7.2.2 not be held liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay in performing any of our obligations as a result; and
7.2.3 be entitled to claim for any costs or losses sustained or incurred by

us arising directly or indirectly from your default.

8. Variation and Amendments

8.1 If you wish to vary the Services to be provided, please notify us as soon as possible. We will endeavour to make any required changes and any additional costs incurred by us as a result will be invoiced to you.

information’s confidentiality and will not disseminate it to any third party, unless authorised by the other Party in writing.

Literature and Representations: Any marketing literature is presented in good faith as a guide to represent the services offered and does not form a part of the Contract. None of our employees or agents are authorised to make any representation concerning the Services unless confirmed by us in writing. In entering into the Contract, you acknowledge that you do not rely on and waive any claim for breach of any such representations, which are not so confirmed.
Intellectual Property

13.1 Subject to a written agreement to the contrary and during the 100 day trial period, we retain ownership in all intellectual property which may subsist in the provision of the Services. Nothing in the Contract will vest any ownership rights in you. After the 100 day trial period full ownership and intellectual property rights will transfer to you.
13.2 Provided payment is made in accordance with the terms of payment above, we will grant you a exclusive license to use the intellectual property the subject of the Contract, only for the purposes for which we are engaged by you. The licence will become effective only once the final design has been provided and once we have received all payments under the Contract in full.
13.3 You may not sub-licence the intellectual property rights without our prior written permission.
13.4 We reserve the right to take such actions as may be appropriate to restrain or prevent infringement of such intellectual property rights.
13.5 The licence will apply only to the final design and will not extend to any

draft concepts, images, designs or other material viewed by you. These cannot be used without our express permission. We reserve the right to reuse these designs at our discretion.
13.6 We reserve the right to use any design created by us in any advertising or promotional material, publications, print.
13.7 Any licence granted shall be automatically revoked if you breach any of these Terms and Conditions or if the Contract is cancelled or terminated in accordance with clause 8.
13.8 You warrant that any image, logo, document or instruction given to us will not cause us to infringe any advertising codes of conduct or any intellectual property or other legal rights, including any letter patent, registered design or trade mark, in the execution of our Services. You will indemnify us against all loss, damages, costs and expenses awarded against or incurred by us in settlement of any claim for any such infringement, including infringement of stock photography copyright, which results from our use of any information supplied by you.

14. Data Protection

14.1 Both parties agree to comply with all applicable data protection legislation including, but not limited to, the General Data Protection Regulation 2016 and any subsequent amendments thereto.
14.2 If you are providing us with the personal data of any other person, it is your responsibility to obtain the consent of those persons to pass their data to us, as a third party. We will only process, store and hold such data to perform our obligations under the Contract and will not use it for any other purpose.

No employment: Nothing in the Contract will render or be deemed to render us an employee or agent of yours or you an employee or agent of ours.
Assignment and Sub-Contracting

16.1 You are not entitled to assign the benefits under the Contract.
16.2 We may sub-contract the performance of any of our obligations under the Contract without your prior written consent. Where we are sub- contracting the performance of any of our obligations under the Contract to any person, we shall be responsible for every act or omission of the

sub-contractor as if it were an act or omission of our own.

17. Liability and Indemnity

17.1 Except in respect of death or personal injury caused by our negligence, we will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under the express terms contained herein, be liable for any loss of profit, loss of business, or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by our servants or agents or otherwise) in connection with the performance of our obligations under the Contract.
17.2 All warranties or conditions whether express or implied by law are expressly excluded to the full extent permitted by law.
17.3 In the event of a breach by us of our express obligations under these Terms and Conditions, your remedies will be limited to damages, which in any event, shall not exceed the fees and expenses paid by you for the Services.

17.4 We may provide professional advice and recommendations in relation to

the Services but we cannot accept responsibility for any actions taken as a result of such advice or recommendations, nor can we guarantee the success or outcomes of any marketing campaign or any of the other Services provided. Further, we shall not be liable for any consequences should any professional advice not be taken. We may provide introductions or referrals to other companies, however, under no circumstances shall we be liable for the actions or lack of actions of said other companies.

18. Restrictive Covenants: Neither we nor the Client will, during the term of the Contract and for a period of 12 months after its expiry or termination, without the other’s prior written consent, appoint in any way or cause to be employed, engaged or appointed an employee, agent, director, consultant or independent contractor of the other.

19. Force Majeure: Neither Party shall be liable for any failure or delay in performing their obligations under the Contract where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event beyond the control of the Party in question.

20. Waiver: No failure or delay by either Party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Contract shall be deemed to be a waiver of any subsequent breach of the same or any other provision.

21. Severance: The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and the Contract, as appropriate). The remainder of these Terms and Conditions shall be valid and enforceable.

22. Third Party Rights: No part of the Contract is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract.

23. Notices: Notices will be deemed to have been duly received and properly served 24 hours after an email is sent or three working days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that it was properly addressed to the address provided, stamped and placed in the post and in the case of an email, that it was sent to the specified email address of the addressee.

24. Law and Jurisdiction

24.1 These Terms and Conditions and the relationship between you and us (whether contractual or otherwise) will be governed by, and construed in accordance with, the laws of England and Wales.

24.2 Any dispute, controversy, proceedings or claim between you and us relating to the Contract or these Terms and Conditions (whether contractual or otherwise) will be subject to the jurisdiction of the courts of England and Wales.