The following terms of business apply to engagements accepted by Dennis Barber Ltd. All work carried out is subject to these terms except to the extent that changes are expressly agreed in writing.
Our office is at 5 Battery Green Road, Lowestoft, Suffolk, NR32 1DE, UK. References in these terms of business to "we", "us", "our" or "our partners" shall be construed accordingly. References in these terms of business to "you" or "our" shall refer to each and every party to this engagement letter (other than us).
"The Registrant" includes the person applying for a domain name or any party acting on the Registrant's instructions. "The Registry" the relevant domain names Registry. "Server" means the computer server equipment operated by us in connection with the provision of the Services. "Web Site" means the area on the Server allocated by us to you for use by you as a site on the Internet. In consideration of the mutual covenants herein, the parties agree to the following, which shall apply during the term of this agreement:
Unless otherwise agreed in writing, our costs will be based on the number and seniority of staff required, the degree of skill and responsibility involved, the resources required to complete the engagement and the fee rates for the appropriate personnel. Our fee rates will be reviewed from time to time. We will also charge for any disbursements incurred during the engagement and we will add VAT to charges and disbursements if chargeable. Any cost estimate we may provide is not an agreement to perform the services within a fixed time or for a fixed fee.
Disbursements will include travel and accommodation expenses and/or car mileage at £0.35 per mile and accommodation at an appropriate class of hotel. Any fee estimate agreed with you is necessarily based on the assumption that the information required for our work is made available in accordance with agreed timetables, and that your key executives and personnel are available during the course of our work. If delays or other unanticipated problems which are beyond our control occur this may result in additional fees for which invoices will be raised.
Payment terms – Payments to be received within 30 days of invoice. The terms of The Late Payment of Commercial Debt Regulations 2002 would apply to this work. We shall be entitled to charge monthly interest at a rate of 8% above the base rate for the time being of Abbey National on all invoices which remain unpaid 30 days after presentation. We reserve the right, where fees have been invoiced and payment is outstanding to us, to exercise a lien in respect of those outstanding fees over any documents belonging to you which may be in our possession.
We will commence, deliver, provide and complete the services/goods at the time stated in this agreement. Time shall be of the essence in the performance of the services / goods. You may at any time upon notice to us, suspend, postpone or reduce all or part of the services/goods for the sake of convenience for which you will be expected to make a final payment to us to represent services/goods undertaken.
If you dispute an invoice in good faith, then you will be entitled to withhold payment of the disputed amount until resolution. You are required to outline details of the dispute within 5 working days of receipt of the invoice.
Without prejudice to our other rights and remedies under this agreement, if any sum payable is not paid on or before the due date, we shall be entitled forthwith to suspend the provision of Services to you and/or terminate this Agreement forthwith without notice to you.
Where commissions are payable to us as a result of this engagement we will notify you of the amounts at the time the transactions concerned are carried out. We will not be liable to pay to you any such commission paid to us but we may take it into account in determining our fee.
We will provide the services described in our proposal (or such variations as may subsequently be agreed in writing between us) with reasonable skill and care and in a timely manner. The nature and content of any advice we provide will necessarily reflect the specific scope and limitations of our engagement, the amount and accuracy of information provided to us and the timescale within which the advice is required. If you ask us to provide our advice in an abbreviated format or timescale, you accept that you will not receive all the information you would have done had we provided a full written report or had been able to perform the work without an abbreviated timescale.
We are providing specific advice only for this engagement and for no other purpose and we disclaim any responsibility for the use of our advice for a different purpose or in a different context. If you plan to use this advice on another transaction or in another context please let us know and provide us with all material information so that we can provide advice tailored to the appropriate circumstances.
Unless otherwise agreed with you, we may correspond by means of the Internet or other electronic media or provide information to you in electronic form. Because of the inherent risks associated with the electronic transmission of information on the Internet or otherwise, we cannot guarantee the security and integrity of any electronic communications or information sent or received in relation to this engagement. Whilst it is our policy to check our e-mail correspondence and other electronic information with anti-virus software, we similarly cannot guarantee that transmissions or other electronic information will be free from infection. You acknowledge that if we are working on your premises we may need to connect to the Internet through your internal network in order to access our systems.
General support for ‘bugs’ and system outage is offered during standard business hours Monday – Friday 9-5. Site backups are regularly undertaken as an automated process at regular intervals on a day by day basis by the hosting provider.
We shall use our reasonable endeavours to make available to you at all times the Server and the Services but we shall not, in any event, be liable for interruptions of Service or down-time of the Server.
We shall have the right to suspend the Services at any time and for any reason, generally without notice, but if such suspension lasts or is to last for more than 7 days you will be notified of the reason.
In order to enable us to fulfil our responsibilities you agree on request, to provide us with complete, accurate and timely information and to carry out any obligations ascribed to or undertaken by you or others under your control. You agree that any commercial decisions that you make, are not within the scope of our duty of care and in taking such decisions you must take into account the restrictions on the scope of our work and other factors, commercial and otherwise, of which you and your other advisers are, or should be, aware from sources other than our work.
You also agree to read and comment on any report provided by us to you within 30 days after which the report will be deemed acceptable to you.
We shall have no liability in respect of the use by you of any domain name; any dispute between you and any other person must be resolved between the parties concerned in such dispute. If any such dispute arises, we shall be entitled, at our discretion and without giving any reason, to withhold, suspend or cancel the domain name. We shall also be entitled to make representations to the relevant naming authority but will not be obliged to take part in any such dispute.
We make no representation and give no warranty as to the accuracy or quality of information received by any person via the Server and we shall have no liability for any loss or damage to any data stored on the Server.
You shall effect and maintain adequate insurance cover in respect of any loss or damage to data stored on the Server.
You represent, undertake and warrant to us that you will use the Web Site allocated to you only for lawful purposes. In particular, you represent, warrant and undertake to us that.
You will not use the Server(s) in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will you authorise or permit any other person to do so.
You will not post, link to or transmit: (a) any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable in any way. (b) any material that encourages gambling of any kind, the consumption of alcohol, the use of tobacco or any harmful drugs. (c) any material containing a virus or other hostile computer program. (d) any material which constitutes, or encourages the commission of, a criminal offence or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction.
You will not send bulk e-mail whether opt-in or otherwise from our network. Nor will you promote a site hosted on our network using bulk e-mail.
You will not employ programs which consume excessive system resources, including but not limited to processor cycles and memory.
We reserve the right to remove any material which we deem inappropriate from your web site without notice. We do not host Warez, Adult or illegal MP3 content.
You shall keep secure any identification, password and other confidential information relating to your account and shall notify us immediately of any known or suspected unauthorised use of your account or breach of security, including loss, theft or unauthorised disclosure of your password or other security information.
You shall observe the procedures which we may from time to time prescribe and shall make no use of the Server which is detrimental to our other customers.
You shall procure that all mail is sent in accordance with applicable legislation (including data protection legislation) and in a secure manner.
In the case of an individual User, you warrant that you are at least 18 years of age and if the User is a company, you warrant that the Services will not be used by anyone under the age of 18 years.
Any access to other networks connected to Creative Smile must comply with the rules appropriate for those other networks.
While we will use every reasonable endeavour to ensure the integrity and security of the server(s), you agree to use these services at your own risk. We do not guarantee that the Server and associated service will be free from unauthorised users or hackers and we shall be under no liability for non-receipt or misrouting of e-mail or for any other failure of e-mail.
We shall use our reasonable endeavours to make sure that the content of any pages designed by us are accurate according to your instruction, but it is your responsibility to check all content and to notify us of any errors so that we can correct them. We will not be liable for any losses or problems arising from errors or omissions.
You pledge that the copyright ownership of any graphic, logo or other material supplied to us is yours, or that appropriate permission to publish such material has been obtained. All material is accepted on the express condition that the supplier of the material guarantees that it does not violate any provisions of the relevant Trade Descriptions legislation.
Your web sites may only be used for lawful purposes. We shall not be liable for any posting, transmission or reception of information which infringes UK or international laws or regulations, or which infringes any third party rights. You accept full liability for all material designed or published on your behalf.
We reserve the right to use examples of web sites created by us for our own promotional purposes. We also reserve the right to use elements of any design created by us again in other web sites that we design.
Where we receive confidential information we shall take such steps as we in good faith think fit to preserve confidential information from unauthorised disclosure or other misuse both during and after termination of this engagement. Save where there is specific agreement to the contrary, our client relationship with you shall not be treated as confidential information and we may disclose this fact to clients, prospective clients, or other third parties upon completion of the Transaction.
Subject to our duty of confidentiality, you agree we may act for your competitors or for other clients, whose interests are or may be opposed to yours. The reports, letters, information and advice we provide to you during this engagement are given in confidence solely for the purpose of this engagement and are provided on the condition that you undertake not to disclose these, or any other confidential information made available to you by us during the course of our work, to any third party (being a party other than those to whom the report, letter, information or advice is addressed) without our prior written consent.
Neither we nor you will be prevented from disclosing confidential information: which is or becomes public knowledge other than by a breach of an obligation of confidentiality; which is or becomes known from other sources without restriction on disclosure; or which is required to be disclosed by law or any professional or regulatory obligation.
All intellectual property rights existing on or prior to the date of the order shall remain vested in the relevant party or its licensors.
We retain all copyright and other intellectual property rights in everything developed, designed or created by us or any predecessor firm either before or during the course of an engagement including systems, source code, software, methodologies, know-how and working papers.
For web and bespoke development, we operate a 'Retained right’ service for intellectual property rights in relation to computer code or script, whether compiled or not, written by the Designer in HTML, CGI-bin, Perl, Java or any other computer language and incorporated into the Website. Clients effectively pay for services, and for the right to use the web site/bespoke development in the ways that we both envisioned it being used at the time of the proposal/arrangement. Clients do not pay to be the owner of any resulting designs or programming code be it source or object unless otherwise agreed prior to commencement/engagement of the order/proposal.
We also retain all copyright and other intellectual property rights in all reports, written advice or other materials provided by us to you, although the fees you pay us allow you to use those materials for the purposes for which they were created under this engagement.
We acknowledge our statutory responsibility to co-operate with your health and safety requirements, provided we are given notice of these. Whilst on your premises our partners, staff, agents and subcontractors shall be afforded by you the same protection for health and safety purposes as is due to your employees. If we are required by you to enter the premises of a third party you will use reasonable efforts to ensure that the third party also affords such protection to our partners, staff, agents and subcontractors as is due to its employees.
By engaging us you agree that any claim of any sort whatsoever arising out of or in connection with this engagement shall be brought only against Creative Smile and that no claims in respect of this engagement will be brought personally against any other persons involved in performance of this engagement, whether actual or deemed servants or agents of us or not.
You agree that our total liability in respect of any loss shall be limited to the lower of the figures produced by the operation of the following two sections.
Our liability to you in respect of breach of contract or breach of duty or fault or negligence or otherwise whatsoever arising out of or in connection with this engagement shall be limited in total to the total amount of the fees charged by us to you under this engagement to cover claims of any sort whatsoever (excluding interest and costs) arising out of or in connection with this engagement. This provision shall have no application to any liability for death or personal injury nor to any liability arising as a result of fraud on our part (or for which we are vicariously liable) nor to any liability which cannot lawfully be excluded or limited.
Where there is more than one party to this engagement letter (other than us), the limit of liability will have to be allocated among you. It is agreed that, save where an allocation is expressly stated in our engagement letter, such allocation will be entirely a matter for you and you shall be under no obligation to inform us of the allocation. If (for whatever reason) no such allocation is agreed, you shall not dispute the validity, enforceability or operation of the limit of liability on the ground that no such allocation was agreed.
Our liability to you in respect of breach of contract or breach of duty or fault or negligence or otherwise whatsoever arising out of or in connection with this engagement shall be limited to that proportion of the loss or damage (including interest and costs) suffered by you, which is agreed between us or ascribed to us by a Court of competent jurisdiction allocating proportionate responsibility to us having regard to the contribution to the loss and damage in question of any other person responsible and/or liable to you for such loss and damage. This provision shall have no application to any liability for death or personal injury nor to any liability arising as a result of fraud on our part (or for which we are vicariously liable) nor to any liability which cannot lawfully be excluded or limited.
For the purpose of assessing the contribution to the loss and damage in question of any other person pursuant to the preceding paragraph, it is agreed that no account shall be taken of any limit imposed or agreed on the amount of liability of such person by any agreement (including any settlement agreement) made before or after the loss and damage in question occurred.
Any claim for breach of contract, breach of duty or fault or negligence or otherwise whatsoever arising out of or in connection with this engagement shall be brought against us within six years of the act or omission alleged to have caused the loss in question.
As provided in section 6 above, the reports, letters, information and advice we provide to you during this engagement are not to be disclosed to any third party (being a party other than those to whom the report, letter, information or advice is addressed) without our prior written consent. Before we provide such consent, we may stipulate terms regarding such provision or require the third party to enter into a direct relationship with us. We disclaim all responsibility for any consequence whatsoever should any such third party rely upon any report, letter, information or advice without our first having given our written consent that such third party may do so. Our only responsibility is that which is owed to you in the context of this engagement as at the date on which our report or other advice is given to you. Save as aforesaid, and save as provided in section 9 above, a person who is not a party to this engagement shall have no right to enforce any of its terms.
We confirm that we will take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of or damage to personal data and comply with any other obligations under the Data Protection Act 1998 (the "DPA"). All terms used in this section shall have the same meaning as in the DPA. You will not by any act or omission put us in breach of the DPA.
Neither we nor you shall be liable in any way for failure to perform, or delay in performing, our respective obligations under this engagement if the failure or delay is due to causes outside the reasonable control of the party which has failed to perform.
Unless otherwise agreed with you, the terms of this engagement will apply from the commencement of our provision of the services outlined in our engagement letter.
Our engagement may be terminated with immediate effect by either party by notice in writing to the regular correspondence address of the other party marked for the appropriate partner or contact. In the event of termination, fees and expenses incurred to the date of termination are payable by you.
In the event that any of the terms of business is held to be invalid, the remainder of the terms will continue in full force and effect.
Our engagement letter and these terms of business constitute the entire agreement between us with respect to this engagement and supersede all prior agreements, proposals, oral and written representations and negotiations.
The headings in these terms of business shall not affect the interpretation of these terms.
These terms of business shall be governed by and construed in accordance with the laws of England and any dispute arising out of this engagement or these terms shall be subject to the exclusive jurisdiction of the English courts, to which both parties hereby agree to submit for these purposes.
If at any time you would like to discuss with us how our service to you could be improved, or if you are dissatisfied with the service you are receiving, you may take the issue up with your usual director contact.
We undertake to look into any complaint carefully and promptly and to do all we can to explain the position to you.
These terms & conditions are subject to change at any time without notice. Last updated on 9th November 2010