Terms & conditions of business for internet design & development services and hosting & support services.
1 .1 “BF Internet” is Big Fish Internet Ltd a Registered UK Company being Company Number 3558791
1.2 “Client” is the individual, partnership, LLP, or company with whom BF Internet is contracting.
1.3 “Contract” means the contract for any internet design projects, website design or development projects, general web design work, general hosting work, or such other work as shall be undertaken by BF Internet at the clients request in accordance with any proposal and specification provided by BF Internet to the client and accepted by the client.
1.4 “Charges” means the amounts payable and due from time to time by the client to BF Internet under the contract.
1.5 “Charges adjustments” means any adjustments to the amounts payable and due under the contract from time to time from the client to BF Internet.
1.6 “Hosting services” means the hosting of any website by BF Internet or such other hosting services as may be set out in the proposal and specification in accordance with clause 7 hereof.
1.7 “Quotation” means any fixed price quoted by BF Internet to the client for the contract work.
1.8 “Estimate” means an estimated or variable price quoted by BF Internet to the client for the contract work.
1.9 “Proposal and Specification” means all the precise details of the contract work to be undertaken by BF Internet for the client under the contract.
2.1 Quotations by BF Internet unless otherwise specifically stated in the quotation shall remain open for acceptance within 30 days of the date of the quotation and thereafter BF Internet reserves the right to re-quote.
2.2 All quotations are given subject to the prevailing rate of VAT in force from time to time and if the VAT rate changes during the course of the contract the client agrees to pay any new VAT rate from the date upon which it is introduced.
3.1 This Agreement takes effect on the date on which the client signed and returned a Terms of Business Acceptance Form to BF Internet agreeing to these terms and conditions of business, or when the client makes a payment for their services or products, whichever is the earliest.
3.2 These terms and conditions shall be incorporated into the contract to the exclusion of any terms and conditions stipulated or referred to by the client.
3.3 BF Internet may from time to time notify the client in writing that it proposes to alter, add to, or abrogate any provisions of these terms and conditions giving details of the proposed alterations and additions or abrogation. Unless the client within 14 days of that notice notifies BF Internet in writing of any objection then the alteration addition or abrogation shall be deemed to be agreed and shall take effect accordingly.
3.4 The client agrees that (unless otherwise agreed and subject to any future changes to BF Internet’s published hourly charging rates) these terms and conditions shall apply to any current contract and also to any future instructions which the client may give to BF Internet from time to time.
3.5 In respect of all contracts for hosting/support services the client agrees that all such contracts shall continue on a rolling basis year after year unless terminated by the client by written notice to BF Internet (which written notice can only be given by the client at least 2 months prior to a contract anniversary date otherwise payment for a full 12 months in respect of hosting/support services shall remain due to BF Internet if the client fails to comply strictly with this notice provision) It is agreed that time shall be of the essence in this respect.
4.1 BF Internet shall only have a contractual obligation to complete works for the client strictly in accordance with the original contract proposal and specification.
4.2 If during the course of any contract BF Internet are requested by the client to carry out additional work over and above the original proposal and specification then the client agrees to pay BF Internet for such work in accordance with BF Internet’s published hourly charging rate.
5.1 The client agrees that BF Internet’s ability to fulfil its contractual obligations to the client depends upon the full and timely co-operation of the client (which the client agrees to give) and also upon the accuracy and completeness of all information and data which the client may provide to BF Internet. The client therefore agrees to provide to BF Internet access to and use of all information documentation data and other material reasonably required by BF Internet to enable it to perform its contractual obligations.
5.2 The client shall at all times be responsible for checking the accuracy and completeness of material given by the client to BF Internet in connection with the contract.
5.3 The Client hereby agrees that it will not, by itself, through its servants agents or otherwise howsoever, approach or offer any form of employment, whether contractual employed or freelance, to any BF Internet employees, contractors or freelancers, whilst they may be contracted to or employed by BF Internet.
5.4 The Client further agrees that it will not by itself, through its servants agents or otherwise howsoever, employ or contract any services, from current or former BF Internet employees contractors or freelancers, for a period of three years from the date of termination of the Client’s contract with BF Internet.
6.1 Following the coming into existence of a contract pursuant to the provisions of clause 3.1 hereof both BF Internet and the client shall use their very best endeavours to facilitate the completion of the contract in a timely and expeditious manner.
6.2 In the event of the client failing to provide any information to BF Internet to enable it to complete its contractual obligations within two months of the date of any written request for such information then BF Internet reserves the right to cancel the contract for non-performance by the client and to retain any monies provided by the client up to the date of cancellation.
6.3 If work on any project cannot proceed further for reasons beyond the control of BF Internet for a period of 4 weeks or more, BF Internet may place the project on hold in order to proceed with projects for other clients. The client agrees that projects which have been placed on hold will be resumed at a reasonable time to suit the current workflow and resource availability of BF Internet.
6.4 Where a project has been placed on hold for a period of 3 months or more, BF Internet reserves the right to charge an additional fee in order to resume the project to reasonably reflect any additional time that may be required for a new team member to pick up the project midway.
6.5 Where a project has been placed on hold for a period of 6 months or more, BF Internet reserves the right either to re-quote on the project or decline to complete the work under the contract due to client delay and in that event no refund will be made to the client in respect of monies already paid to BF Internet.
7.1 At the client’s request and upon payment of any charges for hosting and support services as set out in any proposal and specification BF Internet will provide to the client hosting and support services in accordance with this clause.
7.2 BF Internet shall at all times exercise the same due diligence and reasonable skill and care as would be expected of any experienced provider of website hosting and support services.
7.3 BF Internet agrees to perform website maintenance and support and such other activities as are reasonably necessary to ensure that the website remains in working order subject to the client paying for such hosting /support services. At times, the necessary routine or emergency maintenance carried out either by BF Internet or its suppliers may result in downtime. As per clause 11.1, BF Internet will not be liable for any losses caused by such downtime.
7.4 If the client shall become aware of any faults the client shall immediately make BF Internet aware of the nature and seriousness of the fault.
7.5 Upon receiving such a notification from the client BF Internet will use its best endeavours to identify the cause of the fault. Where the fault is not due to any hardware or software provided by BF Internet BF Internet shall notify the client to enable the client to arrange appropriate support elsewhere. If the fault is due to any hardware provided by BF Internet or is otherwise attributable to BF Internet then BF Internet will provide support services.
7.6 The support services which BF Internet shall provide to the client shall be during normal office hours, and shall include reasonable assistance in the resolution of queries via telephone from the client, recommending any action that may be necessary to rectify the fault, remote rectification of faults where this is appropriate, any other action which BF Internet shall at its absolute discretion deem appropriate in order to remedy the fault.
7.7 For the avoidance of doubt support services shall not cover the diagnosis and rectification of any faults arising from, the use of any BF Internet product for any purpose for which it was not designed or intended, the modification or alteration of or interference with any BF Internet product, the use of any Internet product by non-competent or inadequately trained individuals, the improper and inappropriate use or neglect of any hardware or software, any failure by the client to implement previous recommendations that may have been made by BF Internet, or any fault caused by repair adjustment alteration or modification to BF Internet’s work by any outside third party. In the event of the client having installed any unauthorised software which causes damage either to BF Internet’s own hardware/software, or to the hardware/software of any of BF Internets other clients, then the client agrees to fully compensate BF Internet for all such losses, which either it, or its other clients may incur on a full indemnity basis.
7.8 Unless specified otherwise at the time, cancellation of the hosting and support services provided by BF Internet assumes that domain name renewal, DNS, email facilities, website hosting and dedicated server hosting will all be cancelled.
7.9 To ensure the security of the client’s website and those of others, server access (including FTP & MySQL) is only available to members of the BF Internet team.
The client agrees that the provisions of clauses 8.6, 8.7, 8.8, 8.9, 8.10 and 8.11 shall apply to all contracts for hosting/support services and the provisions of clauses 8.1, 8.2, 8.3, 8.4, 8.5, 8.7, 8.8, 8.10, and 8.11 shall apply to contracts for all other services.
8.1 A payment of 50% of the charges due under the contract plus VAT at the prevailing rate shall be paid to BF Internet by the client upon the return by the client to BF Internet of a Terms of Business Acceptance Form agreeing to these terms and conditions of business and accepting any proposal and specification provided to the client by BF Internet.
8.2 The contract will not be scheduled into BF Internet’s workflow until the client has fully complied with 8.1 above, and the client accepts that BF Internet shall have no contractual responsibility for delay prior to the contract coming into existence pursuant to clause 3.1 hereof.
8.3 A further payment of 40% of the charges due under the contract shall be made by the client to BF Internet either when BF Internet provides mock-ups or proofs to the client, or where 50% of the allocated/estimated project hours has been utilised, whichever first occurs.
8.4 A final payment of 10% of the charges due under the contract shall be made by the client to BF Internet when BF Internet confirms to the client that the contract work has been completed and set live, provided that in the event of any delay in setting work live beyond the control of BF Internet (such as delay in client approval) but nevertheless the work is judged by BF Internet to be complete, or alternatively allocated project hours have been exhausted then BF Internet reserve the right to issue the final invoice at their sole discretion.
8.5 For projects considered by BF Internet to be “minor projects” (and your contact at BF Internet will advise you of this upon quotation for the work) charges shall be due from the client to BF Internet as to 50% pursuant to clause 8.1 hereof and as to the remaining 50% payable at the stage referred to in clause 8.4 hereof.
8.6 Charges for hosting and support services shall be invoiced to clients up to 3 months before the beginning of their subscription period or the anniversary thereof and may include any charges for administration and/or excessive bandwidth/resource charges.
8.7 All invoices issued by BF Internet (save those issued pursuant to clause 8.1 hereof) shall be payable within 30 days of delivery. All unpaid invoices will attract interest at the rate of 15% per annum from 30 days after delivery. If BF Internet are required to take legal action to recover outstanding charges then the client agrees to pay all legal costs, disbursements, and VAT, which may be incurred by BF Internet on or in connection with such legal action, so that BF Internet shall be fully indemnified in respect thereof.
8.8 If any invoices remain unpaid after 30 days of delivery the client agrees to BF Internet removing digital content from the client web space and/or suspending or ceasing the provision of all its services for the client and further agrees to pay to BF Internet an administration charge of £200 + 20% VAT at the prevailing rate in order for BF Internet to reactivate any suspended services following payment of any overdue invoices by the client.
8.9 The client agrees to pay to BF Internet, for the transfer of any domain name hosted with BF Internet to another Internet Service Provider, an administration charge of £25 + 20% VAT which the client accepts must be paid before the transfer is implemented and completed.
8.10 Refunds will be given to clients solely at the discretion of BF Internet.
8.11 In the event of the client/company/website changing ownership an administration charge may be applied by BF Internet for work required in connection with updating its records and details.
9.1 BF Internet shall have the right in respect of any uncompleted portion of the contract to adjust its charges for any increase in the price of labour or any other costs of any kind which may arise for any reason after the date of the contract.
9.2 Charge adjustments shall take effect on the date of service on the client of the notice of the change.
9.3 Where a bespoke project is quoted with a fixed price this fixed price dictates the resulting amount of allocated hours of work according to the BF Internet standard hourly charging rate which is available on request from the BF Internet team. In the event of a project exceeding the allocated hours BF Internet reserves the right to charge up to 10% of the contract price as an additional charge to the client.
9.4 Where a fixed price has been given for carrying out certain work in accordance with a particular specification then the fixed price will apply to that work only and any additional work will be charged at the BF Internet standard hourly charging rate.
9.5 Where an estimate or variable price has been given (as opposed to a fixed price) then the client agrees to pay to BF Internet the standard hourly charging rate for the total number of hours reasonably required to complete that contract work. The client agrees that where an estimate or variable price has been given no fixed price or limit inferred or otherwise is set and the final price will be dictated by the number of hours reasonably required to complete the contract work.
10.1 All vested contingent and future Intellectual Property Rights including but not limited to copyright, trademarks, service marks, design rights (whether registered or unregistered) patents, know-how, secrets, inventions, get up, database rights and all other rights in respect of all design, project, or development work carried out by BF Internet for the client shall remain exclusively the property of BF Internet at all times hereafter unless either sold by BF Internet to the client for a one-off agreed payment or alternatively licensed for use by the client by BF Internet under the terms of any separate software license agreement.
11.1 BF Internet shall have no liability to the client for any loss (including loss of profits or other economic loss (direct or indirect), indirect or consequential loss) or damage of any nature (howsoever caused) or loss or damage (contractual, tortious, breach of statutory duty, or otherwise) arising from any breach of any express or implied warranty or condition of the contract or any negligence, breach of statutory or other duty on the part of BF Internet or in any other way out of, or in connection with the performance or purported performance of, or failure to perform, the contract, except as expressly stated in these conditions.
11.2 The Client agrees that any liability of BF Internet for negligence/breach of contract/breach of statutory duty shall be strictly limited to:-
1. In respect of contracts for hosting/support services the amount paid for the current annual term.
2. In respect of all other work/projects to the amount paid by the Client for that particular individual project or current monthly term in the event of the project being a managed/retained service.
and further ,the Client hereby formally releases BF Internet from all liabilities and claims in excess of this limitation. In respect of all contracts for hosting/support services the Client further agrees that BF Internet shall incur no liability at all for any losses of any description which may be occasioned by downtime of less than 24 hours. In cases where downtime exceeds 24 hours then liability for any losses shall be limited to the annual amount of the hosting/support services charge divided by 365 and multiplied by the number of full days of downtime which may occur in excess of one full day.
11.3 Whilst BF Internet endeavours to ensure that all its work is free from defect, the client accepts responsibility to carry out all appropriate acceptance testing prior to giving approval to BF Internet for a website or project to be made live on the Internet or for any update to be released live. Following live release BF Internet will provide a warranty period of 3 months from the go live date, during which time the snagging of problems and bugs or defects that impede proper functionality of the website will be repaired without charge to the client. After this initial period of 3 months the client agrees to pay BF Internet for all further repair works at BF Internet’s published hourly charging rates from time to time in force. Any deviation from these arrangements shall be at the sole discretion of BF Internet.
11.4 The client agrees that all liability of the client under the contract shall, in the event of there being more than one client, be joint and several liability to BF Internet.
11.5 The client agrees that in the event of the client being a limited company or a limited liability partnership, then all the individual directors and/or members of such limited company or limited liability partnership shall be jointly and severally liable to BF Internet for all the client’s liabilities under the client’s contract with BF Internet for internet design and development services/hosting and support services, in the same way as if those individual directors and/or members had contracted directly with BF Internet, so that BF Internet shall have the benefit of a full guarantee and indemnity from all such individual directors and/all members of the client limited liability company or client limited liability partnership, for all the clients liabilities to BF Internet under the contract.
11.6 BF Internet cannot guarantee that any Search Engine will (or will not) index or list any web pages or websites that are submitted to them by BF Internet.
11.7 BF Internet do not guarantee that the client will receive any e-mail, online orders, bookings, or visitors etc. to their web pages or website.
11.8 Where BF Internet suspects any illegal activity by any client they may notify the appropriate authorities and reserve the right to take any action they may deem necessary both to protect BF Internet systems and to ensure full legal compliance.
11.9 The client warrants the accuracy truthfulness and reliability of all information (including statements of opinion and/or advice) which is placed by the client within its web pages. The client further warrants to be fully authorised and regulated in law for any activities which it may hold itself out in its web pages to be able to undertake.
11.10 The client is personally responsible for use of its account and/or security/login/password details relating thereto. If the client is a corporate user then the company is also responsible together with the individual using the account. When any account of the client is logged on by using the correct security/login/password details the client agrees that BF Internet shall have no liability in respect of misuse of the account. The client agrees to inform BF Internet immediately in the event of security/login/password details being breached and undertakes to cooperate with BF Internet and the Police concerning any legal action which may arise from the misuse of the client’s account by any third party.
11.11 The client agrees to be entirely responsible for the content of the client’s web pages and further agrees not to:-
(a) Publish post distribute or disseminate defamatory infringing obscenely indecent or other unlawful material or information.
(b) Threaten harass stalk abuse disrupt or otherwise violate the legal rights (including rights of privacy and publicity) of others.
(c) Engage in any illegal or unlawful activities.
(d) Make available/upload files that contain software or other material protected by intellectual property laws (or by rights of privacy or publicity) unless the client owns or controls the rights thereto or has received all necessary consents.
(e) Make available/upload files that contain any computer viruses or corrupted data.
(f) Falsify the source of origin of any software or other material contained in a file that the client makes available for use on the client’s web pages.
11.12 If the client or any visitor or user of the client’s website posts any defamatory message the client accepts that it is the client that publishes it and the client who will be liable for the legal consequences of such publication. The client further agrees to be liable and responsible for BF Internet’s reasonable legal costs incurred in defending any defamation action caused by the client’s page content and the client agrees to fully indemnify BF Internet for any damages which may be awarded against BF Internet in any Court of Law which BF Internet may be obliged to pay, as a result of settling any such action upon Counsel’s advice.
11.13 The client agrees and acknowledges that the BF Internet network may only be used for lawful purposes by the client at all times. The client acknowledges that BF Internet is unable to exercise control over the content of the information passing over the BF Internet connection and that accordingly BF Internet shall not be liable for any posting transmission or reception of information which may infringe any UK Law or Regulation or which infringes any third party rights. Such postings transmissions or receptions are strictly prohibited. Further the client acknowledges that BF Internet cannot guarantee the availability of the service and BF Internet reserves the right to suspend or terminate the service at any time.
11.14 The client agrees that BF Internet shall have the right to impose a charge for excessive usage of server resources (including but not limited to bandwidth and storage space usage) Any client intending to use high volumes of bandwidth and other resources must contact BF Internet in advance to discuss their individual requirements.
11.15 The client agrees that BF Internet shall not be responsible for anything posted on the system (unless such posting shall have been made by a member of BF Internet staff) and the client agrees by using the system that BF Internet will not be liable for any damages or losses incurred in connection with the use of the system (even if BF Internet have been advised of this possibility and the client hereby waives any claim in respect thereof). The client agrees to indemnify BF Internet and hold BF Internet harmless from and against any and all reasonable costs proceedings claims damages injuries liabilities losses costs and expenses (including reasonable legal defence and other legal costs) incurred as a result of the client’s actions on the system or materials or information transmitted by the client in connection with the system. Accordingly the client agrees to be liable to BF Internet where claims are made against BF Internet or their systems by other callers or third parties.
11.16 BF Internet will notify the client promptly of any claim for which BF Internet seeks indemnification at the client’s last supplied address and BF Internet will afford the client the opportunity to participate in the defence of any such claim provided that the client’s participation will not be conducted in a manner prejudicial to BF Internet’s own interests as reasonably determined by BF Internet and its legal advisers.
12.1 If any of the provisions of these terms and conditions shall be judged to be illegal or unenforceable then the client agrees that all remaining terms and conditions shall continue in full force and effect and that all of the remaining terms and conditions shall not thereby be prejudiced or altered in any way whatsoever.
13.1 The client warrants that the name address and payment information which the client provides when the client first uses any BF Internet services or products is correct, and the client agrees to notify BF Internet of any subsequent changes in name address and/or payment details.
13.2 The client agrees that BF Internet may disclose the client’s name and address where there is any complaint about the content of the client’s pages or in relation to goods or services advertised therein.
13.3 The client warrants that they are over 18 years of age and that they possess the legal right and ability to contract with BF Internet and to use BF Internet services in accordance with these terms and conditions.
13.4 The client agrees to fully comply with all client responsibilities and obligations as set out in these terms and conditions.
14.1 If the client shall default in, or be in breach of, any of its obligations under the contract, or under these terms and conditions, or becomes insolvent, has a receiver appointed for its business, or is compulsorily or voluntarily wound up, or if BF Internet bona fide believes that any of such events may occur then BF Internet shall be entitled at its discretion, without prejudice to any other remedy, to suspend the performance of or terminate the contract, and the client shall not in that event be entitled to any refund of any unused subscription or other moneys already paid to BF Internet under the contract.
15.1 BF Internet will not distribute web pages outside BF Internet without the client’s consent but may include information about them in promotional materials and advertising and may make such information available to third parties for promotional and advertising purposes.
15.2 The client agrees that publicly available web pages designed and provided by BF Internet may be used in such manner and for such purposes.
16.1 Whilst BF Internet endeavours to make web pages and systems function and visually appear correctly in a range of popular browsers, the client acknowledges the browser development and support is an ever-changing landscape and accordingly forthcoming browser releases can neither be pre-empted nor catered for by BF Internet.
16.2 At the time of project completion/website launch web pages will function normally in the top 85% of browsers by usage in the UK, according to data provided by gs.statcounter.com. Compatibility with the remaining minority browsers will only be assured if this additional requirement forms part of the original specification.
16.3 Following the setting live of the website or system should any new browser or server software versions be released additional work may be required to ensure 100% functionality and reliability. As BF Internet cannot test or develop for these versions before they are released an additional fee may be charged to the client if an update cannot be applied within the warranty period.
17.1 Any client who wishes to make a complaint concerning any of the services provided by BF Internet should initially raise the matter with a member of staff with whom they normally deal or alternatively contact BF Internet with full details of the complaint by e-mail to [email protected] or in writing to BF Internet, 7 Shoreline Business Park, Sandside, Milnthorpe, Cumbria, LA7 7BF. The complaint will then be passed to the relevant person at BF Internet.
18.1 Neither BF Internet nor the client may assign the contract without the written consent of the other party, such consent not to be unreasonably withheld or delayed.
19.1 For the purposes of these terms and conditions Force Majeure shall mean any event which arises which is absolutely beyond the reasonable control of the affected party and shall include but shall not be limited to fire, flood, disaster, civil riots, war, government regulations, and any strike or industrial dispute.
19.2 If a party becomes aware of any such event which causes or is likely to cause any failure or delay in that party’s ability to perform its obligations under the contract then that party shall forthwith notify the other and shall inform the other of the likely timescale for which it is estimated that failure or delay shall continue. The affected party shall do everything possible to recover from the event and mitigate its effects.
20.1 In the event of any information being identified as confidential when it is disclosed, or in respect of any information which ought reasonably to be considered confidential given the nature of the information or the circumstances of its disclosure the parties to the contract agree to keep such information confidential.
20.2 Each party to the contract shall take all reasonable steps to protect the confidential information of the other against unauthorised disclosure and undertakes to use all reasonable skill and care in order to ensure that protection.
20.3 A party may share confidential information about the other with its own employees, servants or agents strictly on the basis that any recipient of the information is bound to maintain the same level of confidentiality.
20.4 This clause shall not apply to any confidential information which is or has become publicly known other than through breach of this clause, was required to be disclosed by any government authority, was received by the receiving party from an independent third party who had full right of disclosure, was independently developed by the receiving party, or was in possession of the receiving party prior to disclosure by the other party.
20.5 Any proposal and specifications provided to the client by BF Internet shall at all times remain the property of BF Internet and shall not be disclosed by the client to anyone else without BF Internet’s specific written consent.
20.6 The parties agree that this confidentiality clause shall continue to have full effect even after the termination of the contract or agreement to which it relates.
21.1 The parties agree that any dispute or claim arising out of or in connection with the subject matter of these terms and conditions or out of or in connection with any contract or agreement between the parties shall at all times be covered by and construed in accordance with the laws of England.
21.2 Both parties hereby agree to submit to the exclusive jurisdiction of the Courts of England in the event of any dispute or claim arising out of or in connection with these terms and conditions or any contract or agreement incorporating the same.
22.1 Any notices to be given under these terms and conditions or under any contract between the parties shall be sent by recorded delivery or registered post to the last known address of the party on whom it is intended to be served and shall be deemed to have been received 48 hours after the date of posting.
22.2 In order to prove service it shall be sufficient to show that the envelope containing the notice was properly addressed and posted.
The points below relate to domain names that end with a .uk extension, which have been registered through BF Internet, where BF Internet act as a registrar in partnership with Nominet
23.1 If, further to point 17, any complaint relating specifically to a domain name with a .uk extension has not been resolved satisfactorily and within a timely manner, the complaint can be escalated with Nominet: http://www.nominet.uk/resources/complaints/#registrar. Complaints made to BF Internet relating to domain names are answered on the same business day wherever possible, and always within 5 business days.
23.2 .uk domain names are also subject to Nominet’s own terms & conditions, which are available here: http://www.nominet.uk/go/terms
*current VAT rate of 20%, subject to change.
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