Covering All Projects and Retainers
- “We” or “Daykin & Storey” means Daykin & Storey Ltd., and “us” and “our” shall be construed accordingly.
- “You” means the person or legal corporate entity nominated as the “Client” on the accompanying Daykin & Storey Contract Form document and “your” shall be construed accordingly.
- The “Agreement” means these terms and conditions.
- A “Project” refers to a piece of work that is not ongoing and has a documented specification of requirements, outlined in the Deliverables, that once completed mark the completion of work. Details are outlined on the Daykin & Storey Contract Form.
- A “Retainer” refers to ongoing or periodic work that is paid for on a regular basis. Details are outlined on the Daykin & Storey Contract Form.
- “Deliverables” means all written, code and graphic work product produced by us in connection with the Project or Retainer, including the source code in all websites and including the Standard Deliverables set out in the Deliverables document annexed hereto.
- “Documents” means the Deliverables document and the Contract Form (each of which is annexed hereto).
- The “Fees” means the fees specified on the Daykin & Storey Contract Form.
- “Intellectual Property Rights” means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trademarks, patents, design rights, database rights and all rights to sue for passing off.
- “Services” means the design and production of the deliverables and the website, SEO and maintenance, and all other services and work we will provide in relation to the Project or Retainer.
- “Specification” means the descriptions and specifications contained in the Deliverables document.
- “Website” means each website designed,built, and/or worked on in the course of the Project or Retainer.
- “Business Days” means all days that the Daykin & Storey office is open. It excludes weekends, Bank Holidays and the days we close over the Christmas period.
- “Critical Response Issue Rate” means the lead time between you notifying us in writing of a mission critical or highly important issue and us looking at it for you (including but not limited to, website being down, sales functionality not working etc. Daykin & Storey are only able to provide the agreed Critical Issue Response Rate for websites and software that we manage for you under the Agreement and for which we have the relevant access to.
2. Our Contract with You
- Our contract with you will comprise this Agreement and the signed Documents annexed hereto.
- We contract for the supply of our Services only on the terms set out in this Agreement. Any other terms and conditions (including but not limited to any included in your order, enquiries or other documentation you have shared with us) inconsistent with these terms and conditions shall be of no effect.
- In the event of any conflict or inconsistency between the Agreement and any Document, the Agreement shall take precedence.
- Any modification to these terms and conditions will be binding only if it is evidenced in writing signed by a Director of Daykin & Storey and an authorised officer of yours and such evidence contains a specific reference to these terms and conditions being modified.
- For repeat Clients of Daykin & Storey: these terms and conditions will apply to all Projects and/or Retainers undertaken by us for you, whether or not we supply a copy of these with every new Daykin & Storey Contract Form we issue to you. We will notify you of any changes as set out herein.
- If you wish to make additions to and/or vary the Agreement and/or any Document(s) in relation to a Project or Retainer (for example, but without limitation, to propose changes to the specification of a Project), you must notify us in writing. Such notice will be called your Change Order. If more than one Change Order is issued in relation to a Project and/or Retainer, then you must number them consecutively.
- On receipt of a Change Order, we will review the requested additions and/or variations and shall within ten Business Days respond to the Change Order in writing stating if the requests are practicable and what additional resources may be required to fulfil those requests together with the changes to costs and timetable.
- You should then, within five Business Days of receipt of the our written response notify us whether you wish to:
- Implement the Change Order and have us proceed on the terms of our response;
- Proceed under the terms of the original Agreement and not implement the Change Order; or
- Terminate with immediate effect the original Agreement, in which case you agree to abide by the terms set out in the section of this document entitled “Termination”.
If no response is given within the five Business Days we reserve the right to pause all work on the project and invoice for all work carried out to date, or to carry on with the original planned work at our discretion.
4. Fee Rates, Payment Terms, Deposits and Individual Guarantees
- For both Projects and Retainers we may require staged payments of the total Fees set out in the Contract Form, including a deposit, payable prior to work taking place. Where staged payments and/or deposits are required, details about stage-gates and invoice triggers will be outlined in the Contract Form and payment will be due within 30 days of the date of the invoice.
- Any costs set out in the Monthly Costs section of the Contract Form shall be invoiced monthly and shall be payable within 30 days of the date of the invoice.
- you are receiving pre-start funding from Business Enterprise Group, NBSL or other funding bodies, or
- you have no commercial or personal (as applicable) credit history, or
- you have not submitted, and had accepted by us, a Credit Application Form, then We may at our discretion either:
- require a deposit up to the full value of the Fees (or our best estimate of them), or
- require that your payment and performance obligations contained in this Agreement are guaranteed by an individual or individuals connected with you.
- Our hourly rates for each of the contracted services are outlined in the Contract Form.
- We reserve the right to increase the rate with 30 days’ notice.
- Under our standard terms, invoices are payable within 30 days of the invoice date unless otherwise specified in the Daykin & Storey Contract Form.
- Value Added Tax (“VAT”) is chargeable on Deliverables or Services supplied by us under this Agreement at the current rate.
5. Sub Contracting
- We may retain third party contractors/freelancers to work on the Project and/or Retainer. You acknowledge that the staffing of your project is entirely at our discretion.
6. Intellectual Property
- You agree that any and all of the copyright, design rights, trademarks, trade names, patents and other intellectual property rights created, developed, subsisting in, or used in or in connection with the development of, the Deliverables or otherwise in connection with the Project or Retainer are and shall remain our sole property until we receive payment in full from The Client.
- Upon receipt of payment of the agreed fees, we agree to immediately transfer to The Client all copyright, design rights, trademarks, trade names and patents relating to the finished artwork and creative content, including copy, associated with the Project and/or Retainer.
- In the event that new inventions or processes or rejected ideas and designs evolve in the performance of, or as a result of, our provision of Services in connection with a Project or Retainer, you agree that the same shall be our property, as well as any intellectual property conceived during the development process, but which falls outside the Project or Retainer’s original brief or scope.
- Where a Project or Retainer involves creation of website code, programming scripts or other comparable technical content (such as, but not restricted to, a Content Management System or website HTML) you agree any and all of the copyright, design rights, trademarks, trade names, patents and other intellectual property rights associated with said technical content shall remain our sole property.
- Upon receipt of payment of the agreed fees, we agree to grant you a non-exclusive licence for the use of this technical content in relation to your project.
- You shall not at any time during or after the completion, expiry or termination of the Project, Retainer, or of this Agreement, in any way question or dispute our ownership of the property and rights referred to in this section.
- You shall and do hereby indemnify us against all liabilities, costs, damage, damages and expenses which we may incur as a result of or in connection with any claim for infringement of any third party intellectual property rights, where the subject or source of such claim arises out of our compliance with your instructions or direction, or out of our use of materials or ideas provided to us by you, including without limitation claims arising out of the framing of or linking to third party websites and/or third party proprietary material.
7. Approvals, Delivery and Acceptance
- In the event that we provide proofs of work to you for approval, you shall use your best endeavours to provide such approvals in a timely fashion so as to enable us to meet any agreed timetable for delivery. We shall incur no liability for any delayed delivery attributable to any delay on your part in providing timely approvals, and nor shall we be liable for any errors not corrected and communicated by you in response to proofs so submitted. Any alterations suggested by you and additional proofs necessitated thereby may result in additional charges.
- Delivery milestones are agreed in good faith, but are indicative only. We will use reasonable efforts to deliver a Project and associated Deliverables on time, and to inform you of any delays and, wherever possible, the reasons for and the anticipated length of the delay. We will expressly not be liable to you for any delay caused as a result of your failure to provide information, instruction or direction on a timely basis.
- Acceptance (which expression shall be construed as including acknowledgement that a Project has been satisfactorily concluded) may be provided by you verbally or in written form (it is expressly agreed that email will suffice for this purpose).
- In the absence of written confirmation or dispute, acceptance will be deemed effective following the date of delivery of the last due Deliverable.
- Where the Deliverables have been met and the Project is complete save for content the client has undertaken to provide, completion of the Project will be deemed effective following the date of delivery of the last due Deliverable. In such circumstances we undertake to honour outstanding work previously agreed (for example, but not limited to, uploading of the content, training etc.) provided that outstanding content is made available to us within three months of the date of delivery of the last due Deliverable.
- Where the Deliverables have not been met due to a failure of the Client to provide Content, Acceptance or where any delay is attributable to action or inaction on behalf of the Client, at our discretion, we reserve the right to raise an invoice for all work completed up to that point. In such circumstances we undertake to honour outstanding work previously agreed at our earliest possible opportunity provided that the appropriate Content, Acceptance or outstanding Action is made available to us/completed within one month of the date of the interim invoice, whereupon we reserve the right to follow our procedures as outlined in the “Termination” section of this document.
8. Hosting & Backups
- As we use a third party, Heart Internet, for all of our hosting and backup solutions and have no direct involvement in the day to day management of the physical servers, you agree that Daykin & Storey shall not be held liable for downtime of any website or mailbox that we host or loss of backups, where the resolution of the issue is out of our remit (for example, but not limited to, hardware malfunctions, DNS propogation, security updates etc.).
- In the event of a hosting issue that relies on Heart Internet to resolve, once informed of the issue, we will raise a ticket with their helpdesk outlining the problem and provide them with as much information as we can.
- Where the client has a backup solution with us for their VPS hosting, we endeavour to carry out periodic spot checks to ensure our automated tasks which trigger the backup to be taken are functioning correctly.
- As the checking of the functionality of automated tasks are functioning correctly on a daily basis would be time consuming and costly for the client, we cannot guarantee the functionality of the automated task on a daily basis unless quoted for specifically in the retainer.
- In the event of non-payment by relevant due dates, you agree that in addition to any rights and claims we may have at law, we may:
- Discontinue website hosting without any obligation to issue you with further notice; and/or
- Take steps to have transferred to us ownership of the domain name of any website the subject of the Project or Retainer to which the non-payment relates; and /or
- Discontinue work on any other Project or Retainer we are undertaking for you as at that date; and/or
- Set-off/apply any deposit or Fees we have received from you for any other Project against any unpaid and overdue invoice.
10. Warranties and Limitations on Liability
- Each party warrants to the other that it has full power and authority to enter into and perform this Agreement.
- We warrant that the Services provided under this Agreement will be provided with reasonable care and skill and in accordance with all applicable laws (including but not limited to the Bribery Act 2010, the E-Privacy Directive, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Data Protection Act 1998 (“DPA”) and the Disability Discrimination Act 1995).
- All samples, illustrations, colours, drawings and diagrams in our catalogues, trade literature and other published matter are of a generally informative nature and approximate only and are subject to change without notice and none of these shall form part of any contract or give rise to any independent or collateral liability.
- We hereby exclude all warranties, and expressly make no guarantee, concerning the future performance of a website, campaign or any other piece of work that is the subject of a Project or Retainer, nor the sales or other business results anticipated or projected in connection with the operation of such, nor the performance or appearance of a website in search engine rankings, even where the Project includes or consists exclusively of Search Engine Optimisation or any other marketing work.
- In relation to Search Engine Optimisation work, you specifically agree that this limitation is appropriate. Search Engine Optimisation work is a series of set tasks – these can be done, but the result is not possible to guarantee or accurately predict, as it is subject to so many factors outside our control.
- In no circumstance will acceptance of work or deliverables, or payment by you of our Fees in relation to a Project or Retainer, be contingent on these, or any other, performance indicators.
- We will not be liable for any underperformance, or for any loss or damage, arising from your design or specification error or if you have chosen the wrong or an unsuitable deliverable or service for your purposes, save where the underperformance, loss or damage arises solely out of our negligence.
- We will not be liable for any underperformance, or for any loss or damage, arising from a deliberate or malicious breach of security by a third party or automated program (a “hack”). You specifically agree that this limitation is appropriate: in a world in which NASA is vulnerable to hacks, we cannot guarantee immunity despite our best efforts.
- Except as otherwise provided in these terms and conditions, all representations, guarantees, undertakings, conditions or warranties, express or implied, in tort or contract, statutory or otherwise in relation to our Services are hereby expressly excluded to the extent so permitted by law.
- Notwithstanding any other provision in this Agreement, we shall not be liable by reason of any representation (other than fraudulent representations), or any warranty, condition or other term, express or implied, or any duty at common law for any indirect, special or consequential loss or damage (whether loss of profit, contracts, business or goodwill or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by our negligence, the negligence of our employees, contractors, agents or otherwise) which arise out of or in connection with this Agreement.
- Our total liability to you in relation to any Project shall not in any circumstance exceed the amount of Fees payable and paid to us by you in relation to such Project.
11. Confidential Information
- All information, drawings, specifications, documents, contracts, design material and all other data which The Supplier may have imparted and may from time to time impart to The Client relating to its know-how, business, clients, prices, services, software, the website, contracts (including this Agreement), website design, architecture and content is proprietary and confidential.
- The Client hereby agrees that it will use such confidential information and all other data solely for the purposes of this Agreement and that it will not at any time during or any time after the completion, expiry or termination of this Agreement use or disclose the same whether directly or indirectly, to any third party without The Supplier's prior written consent.
- The Client further agrees that it will not itself or through any subsidiary or agent, use, sell, license, sub-license, create, develop or otherwise deal in any confidential information supplied to it by The Supplier or obtained pursuant to this Agreement.
- The Supplier agrees to keep customer information confidential and stored securely.
- We may terminate this Agreement at any time by giving not less than thirty (30) days prior written notice to you.
- You may cancel a Project at any time by providing us with written notice and agreeing to pay us a termination fee of 25% of the total sum of the project as outlined in the Contract Form, or the value of work completed up to the point of termination where that exceeds 25% of the total sum of the project.
- You may terminate your Retainer with us at any time by giving not less than three months’ notice.
- Either of us may by notice in writing immediately terminate this Agreement if the other shall:
- Be in breach of any of the terms of this Agreement which, in the case of a breach capable of remedy, shall not have been remedied within 21 days of receipt of a written notice specifying the breach and requiring its remedy.
- Be unable to pay its debts or enter into compulsory or voluntary liquidation or compounds with or convenes a meeting of its creditors or has a receiver or manager appointed or (being an individual or firm) becomes bankrupt or ceases for any reason to carry on business or takes or suffers any similar action.
- Within seven days of the date of termination of this Agreement for whatever reason, and if so requested by us, you will return or destroy (as we may direct) all hard copy forms of The Supplier's designs, graphics, code, content, audio-visual and hard copy material and data relating to the Project and/or Retainer, and purge all magnetic media forms of the same, as well as all software and related materials and provide The Supplier with a certificate certifying that the original and all copies of such material (in whole or in part), in any form of media have been so returned or destroyed and/or purged as the case may be and permit The Supplier's personnel or agents to collect, destroy or purge the same.
- Should our requests for information be unanswered, and/or our attempts to contact you unsuccessful (with no reason given - annual leave, for example) for a period of of 30 days, we shall action your request for termination and the relevant termination fee will be requested.
- Termination of this Agreement shall be without prejudice to any accrued rights of either party.
13. Force Majeure
- Neither of the parties to this Agreement shall be responsible to the other party for any delay in performance or non-performance due to any causes beyond the reasonable control of the parties hereto ('Event of Force Majeure'), but the affected party shall promptly upon the occurrence of any such cause so inform the other party in writing, stating that such cause has delayed or prevented its performance hereunder and thereafter such party shall take all action within its power to comply with the terms of this Agreement.
- In the event that the event of Force Majeure shall continue for a continuous period of two months, then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an event of Force Majeure.
- Any notice required by this Agreement to be given by either party to the other shall be in writing and shall be delivered or sent by first class post or by email to the address of the other party set out in this Agreement (or to such other address as may have been notified) and any such notice shall be deemed to have been served, if delivered, at the time of delivery, if sent by post 48 hours after posting and if sent by email, 1 hour after transmission. To prove service, it is sufficient to prove that the notice was transmitted to the email address of the relevant party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
- The addresses (physical and email) for service of notice are outlined on the Contract Form.
- The waiver by either party of a breach or default of any provision of this Agreement by the other shall not be construed as a waiver of any succeeding breach of the same or other provisions of this Agreement.
- The Client shall not assign, sub-contract or otherwise transfer this Agreement without our prior written consent, which shall not be unreasonably withheld. For the avoidance of doubt, the provisions of this clause shall not apply to us.
17. Entire Agreement
- This Agreement sets out the entire agreement of the parties and supersedes all prior agreements and understandings relating to its subject matter. This provision shall not apply in the case of fraud.
18. Law and Jurisdiction
- This Agreement shall be governed by English law and the parties shall submit to the exclusive jurisdiction of the English Courts.