Contents
- Definitions
- Terms of trade
- Legal application
- Privacy
- Confidentiality
- Software integrity
- Public-domain software
- Web design & conceptualisation
- Domain, email, e-commerce & hosting
- Services
- Quotations
- Price
- Payment
- Delivery & completion
- Copyright & content
- Ownership
- Risk & insurance
- Disclaimers
- Liability & indemnity
- Claims
- Warranty
- Termination
- Force majeure
1. Definitions
“the Company” – Hayes Computing Solutions Ltd. “HCOMS” – Hayes Computing Solutions Ltd. “the Products” – any equipment or third-party software sold or licensed by the Company. “the Services” – any services or consultancy provided by the Company. “the Client” – any person, organisation or company that contracts directly with the Company to purchase any of the Products or Services. “these Conditions” – these terms and conditions. “the Contract” – the contract for the purchase and sale of Products and Services. “Conditions” – the terms and conditions of sale set out in this document and any special terms agreed in writing by the Company.
2. Terms of trade
2.1
These Terms and Conditions apply to and govern all Contracts under which Hayes Computing Solutions Ltd (HCOMS) agrees to supply Services and/or Products. They prevail over any terms and conditions of the Client, whether referred to in the Client’s order, correspondence, elsewhere, or implied by trade custom, practice or course of dealing. Any provisions to the contrary are excluded.
2.2
The Contract and these Conditions constitute the entire agreement between the parties.
2.3
No variation of the Contract or these Conditions shall be binding unless made in writing and signed by a duly authorised representative of each party.
2.4
The Contract shall not constitute a partnership or agency agreement, and neither party may bind the other.
2.5
In making this agreement each party confirms that they have not relied on any inducement not recorded in this agreement.
2.6
Where the Company is held not entitled to rely on any term, the Company may also cancel all rights and obligations under the contract, or hold all other clauses as valid, at its sole discretion.
2.7
The term “Quotation” is used synonymously with “price as agreed” in cases where an official quotation has not been signed.
2.8
Should the Company waive any of these terms on an individual basis, this shall not affect the validity of remaining clauses or commit HCOMS to waive the same clause on any other occasion.
2.9
The Company reserves the right to amend these terms and conditions at any time.
2.10
This contract shall be subject to English law.
2.11
No failure or delay in exercising any right shall be deemed a waiver of that right. No waiver of any breach shall be considered a waiver of any subsequent breach.
2.12
If any provision of this Contract is held invalid or unenforceable in whole or part, the validity of the other provisions shall be unaffected and remain in full force.
3. Legal application
3.1
Agreements between the parties which deviate from these Terms and Conditions are not legally valid unless stipulated in writing.
3.2
The terms of this Contract are not enforceable by a third party under the Contracts (Rights of Third Parties) Act 1999.
4. Privacy
4.1
It is the Client’s responsibility to ensure that all applicable civil liberty legislation and personal-privacy safeguards are complied with when using software supplied by the Company — both those enshrined in UK and EU law and those included in any telecoms service contracts entered into by the Client. See also our Privacy Policy.
5. Confidentiality
5.1
Each party agrees that all information (written or oral) other than technical information obtained from the other party is confidential, shall be used solely for the purpose of this Contract, and shall not be disclosed without written consent. Both parties shall ensure such information is treated as confidential by their employees, agents and sub-contractors. Technical information clearly designated as confidential shall be treated under this clause for 5 years from receipt.
5.2
The above does not apply to information which is trivial or obvious; is or becomes public knowledge other than by breach of this Contract; or is in the receiving party’s possession without restriction prior to disclosure.
5.3
Nothing herein shall prevent the Company from using data-processing techniques, ideas or know-how gained during this Contract in the pursuit of its normal business, provided this does not result in disclosure of confidential information or breach of patents or copyrights of the Client.
5.4
For the purpose of UK data-protection legislation, the Client is the Data Controller for any personal data collected via their website.
5.5
Where the Client collects information or provides login requiring personal passwords, the Company encrypts the storage of all such passwords. Encrypted data is not available to the Client. Passwords can be retrieved by the user via the “forgotten password” process.
6. Software integrity and compatibility
6.1
It is the Client’s responsibility to ensure that prior to the Company starting work on its computer system all critical data has been backed up and appropriate recovery procedures are in place.
6.2
It is the Client’s responsibility to maintain the effectiveness of any third-party software supplied by the Company by acquiring database files, programme patches and other revisions as they become available from the original developer.
6.3
It is the Client’s responsibility to comply with terms of use, distribution and duplication of any software supplied through the Company.
6.4
The Company will not accept responsibility for bespoke programs deployed on machines significantly different in configuration or environment from those on which the programs were compiled and tested.
7. Public-domain software
7.1
Software available as freeware, shareware or otherwise from the public domain is supplied on an “as is” basis. The Company makes no warranty as to fitness for purpose, performance or freedom from embedded malicious software.
7.2
Where the Products or Services include software, the Client shall enter into a licence on such terms as the Company shall require.
8. Website, project design and conceptualisation
8.1
It is the Client’s responsibility to provide all project design content in a suitable format. We take no responsibility for errors in content supplied by the Client; any changes incurred may be chargeable at standard rates.
8.2
The Company cannot be held liable for non-commencement or timely completion of any project where the Client has failed to provide a suitable project design, clear instructions and/or sufficient content.
8.3
The Company cannot be held liable for non-completion of any project due to problems with a third party.
8.4
The Company shall provide a maximum of three complete designs for approval by the Client within the price quoted. Additional designs are subject to charge at our prevailing hourly rate.
8.5
Failure of the Client to agree an acceptable design / content configuration will be deemed a cancellation by default and the terms of clause 22.4 shall become enforceable.
8.6
The Company will accommodate reasonable requests for design or functionality changes during development. In the absence of specific documentation from the Client for changes not already included in the project specification, we reserve the right to make additional charges at our prevailing rates.
8.7
By non-compliance of clause 8.1 or 10.1, any project may be postponed by the Company until sufficient time is available. If insufficient time is available due to existing commitments, the Company has the right to terminate the project and submit an invoice as per clause 22.4.
8.8
Wilful withholding of content, information or other requirements that prevents or delays project completion will be deemed a cancellation under clause 22.4.
8.9
For projects of less than 40 hours’ build time, the project will commence and be presented for user-acceptance testing on completion.
8.10
Projects exceeding 40 hours’ build time will be phased in time and payment as per clause 13.1, with sign-off and payment per clause 15.2 at the end of each phase.
8.11
The Company will initially place the Client’s website on one of our servers during development. The site will only be released on receipt of payment in full.
8.12
Once the design proof has been signed off, modifications to the design specification or functionality will be considered an amendment to the contract and subject to charge at our prevailing hourly rate.
8.13
Our consultancy and general advice is by its nature subjective. We cannot guarantee that any of our ideas will increase traffic to the Client’s site, improve search-engine ratings or boost sales.
8.14
All requests should be made (or confirmed) in writing — letter, fax or email — to ensure integrity of communication and avoid misunderstanding.
9. Domain registration, email, e-commerce & website hosting
9.1
Hosting service accounts are defined as those facilities provided to support and host the Client’s website.
9.2
The Company will set up email addresses requested by the Client free of charge, up to the maximum of the chosen hosting package.
9.3
The Company does not provide assistance setting up email accounts on the Client’s computer.
9.4
Email accounts created on behalf of the Client have a password sufficiently composed to prevent easy detection (at least 8 characters, mixed letters / numbers / characters).
9.5
Clients are supplied with details to set up their email account on their own machine. Further support is the Client’s responsibility.
9.6
Domain names will be registered in the name of the Company and to its current address. The Client is the legal owner of the domain; if requested, the Company will transfer the domain elsewhere within a reasonable timeframe.
9.7
Where domains are registered in the Client’s name, the Company acts as the Client’s agent with the appropriate Naming Authority.
9.8
Domain registration is normally for two years unless otherwise stated. The Company will provide reminders, but it is the Client’s responsibility to ensure all domains remain current.
9.9
The Company takes no responsibility for the Client’s existing domain names. Any transfer requests must be initiated by the Client.
9.10
The Company can arrange hosting on behalf of the Client, with subscription detailed in the current price list.
9.11
All hosting services are for a minimum period of twelve months and renew automatically unless notice is given in writing at least 24 hours prior to the renewal date.
9.12
Hosting accounts must be paid for prior to the commencement of the hosting period. If payment is not received the Company will remove hosting services in accordance with clause 13.10.
9.13
Computer storage and bandwidth is allocated per the chosen support package. Over-usage is invoiced at the prevailing rate.
9.14
For security reasons, FTP access details are not generally issued to the Client or third parties.
9.15
If a Client requires to move their website permanently, FTP details cannot be released until all outstanding payments are paid.
9.16
If a website is found to be consuming more resources than that contracted, the Company reserves the right to suspend the account until additional bandwidth is purchased.
9.17
The Company reserves the right to charge for transfer of hosting facilities.
9.18
The Company recommends Stripe, SagePay and PayPal as primary payment-gateway providers for e-commerce sites. Use of an alternative may incur additional integration charges.
9.19
If the Client decides not to continue hosting and fails to arrange transfer for a period of 1 year or over, the Company reserves the right to permanently disable the site.
9.20
Annual hosting charges are reviewed regularly and subject to inflationary increase.
10. Services
10.1
The Client shall, at its own expense, supply the Company with all necessary documents, data, materials or other information within sufficient time to enable provision of the Products and Services in accordance with the Contract.
10.2
The Client shall ensure the accuracy of all such documents, data, materials or other information.
10.3
Products and Services to be provided are as agreed between the Client and the Company in the quotation, together with any additions, deletions and changes agreed in writing during this Contract.
10.4
The Company reserves the right to remove an existing site to make corrections or changes requested by the Client, whether or not these changes have been brought about by the Company.
10.5
The Company may use software segments or library routines developed by the Company in the development of the Client’s application. The Company retains sole copyright to those routines and grants the Client a perpetual licence to use them within the application developed by the Company.
11. Orders, quotations and tenders
11.1
On receipt of a brief from the Client, the Company will produce a quotation detailing the specification of the work.
11.2
Tenders and quotes are valid for 30 days from the date issued.
11.3
The Client must provide written confirmation of the quotation by signing and returning a copy. This forms the basis of the contract.
11.4
The quantity, quality and description of any specification shall be those set out in the Company’s quotation or order acknowledgement.
11.5
No change of any of the terms or specifications shall be valid or binding unless in writing and signed by an authorised representative of each party.
12. Price
12.1
Prices charged in any quotation are exclusive of VAT, unless otherwise stated, and may be varied without prior notice.
12.2
Travelling time and mileage to and from customer premises is not generally included in our estimate. The Company reserves the right to charge for travelling time at our current hourly rate and mileage rates. (No charges for travelling time or expenses incurred during the quotation process.)
12.3
The price quoted is based on standard-level specifications as laid out in the quotation. Reasonable amendments will be accommodated; we reserve the right to charge for these on a time basis.
12.4
Unless the Client has subscribed to a specific support package, any request for additional work will be chargeable at current hourly rate, subject to a minimum of 1 hour.
13. Payment
13.1
Payment for design and project services must (unless otherwise agreed in writing) be made as follows: 25% (or an agreed deposit) with order, plus balance on completion of a phase or complete project. Modifications after completion will be charged at the prevailing hourly rate.
13.2
Payments are due within 14 days of presentation of invoice.
13.3
The Company reserves the right to suspend deliveries where payment is not received.
13.4
Where payment is not made, the Client shall, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, pay interest on unpaid amounts at the statutory rate currently in force above the Bank of England base rate, calculated daily.
13.5
All charges incurred by the Company due to late payment, returned cheques, or fees to recover debts will be passed to the Client.
13.6
No cash or other discount is allowed unless agreed in writing.
13.7
The Company reserves the right not to provide any coding, working papers, designs or source materials unless payment has been received in full.
13.8
The Company does not provide credit beyond the terms set out in its contract.
13.9
We reserve the right to suspend or disable any website that has not been completely paid for.
13.10
We reserve the right to off-set any accounts outstanding or in dispute against other accounts of the same customer.
13.11
Failure to make payment within the term will result in the Client account being placed on stop and all services withdrawn.
13.12
Clients of services requiring regular monthly payments agree to accept the minimum subscription period (currently 12 monthly equal payments).
13.13
The Company reserves the right to make a charge of 1 hour at current rates for appointments not kept or cancelled with less than 24 hours’ notice.
14. Delivery and contract completion
14.1
Completion relies on the Client supplying information, content and approvals within a timely framework. Completion dates can only be treated as indicative; delay in delivery shall not constitute a breach of contract.
14.2
Time shall not be of the essence in this Contract.
14.3
Delivery may be made in whole or in part at the option of the Company.
14.4
If default is made in payment on the due date, the Company has the right to suspend further deliveries or terminate the contract entirely.
14.5
An “Acceptance Document” is supplied for signature on completion. No site should be released until this is signed; the Company reserves the right to take down any site previously released if not completed.
15. Copyright and content
15.1
The Client must own copyright, or have reproduction rights, of all artwork, trade names, photographs and other materials reproduced in the Client’s project.
15.2
The Client shall indemnify the Company against all liabilities, costs, damages and expenses incurred as a result of work done in accordance with the Client’s specifications which involve infringement of any copyright or other intellectual-property right.
15.3
Where images are purchased by the Company on behalf of the Client, those images are strictly for use on the website only.
15.4
The Client has full liability for the consequences of the contents of the printed literature, website or other commissioned project.
15.5
All preliminary work carried out at the Client’s request, whether experimental or otherwise, shall be charged to the Client at the then current rate.
15.6
The Company withholds the right to refuse publication of any content it sees as indecent, obscene or offensive.
15.7
Proofs of all printed work may be submitted for the Client’s approval; the Company shall not be liable for errors not corrected by the Client in such proofs.
15.8
Copyright of all material originated by the Company — whether pre-contract documentation, text, images, research, graphics, photographs or electronically stored code — remains vested in the Company.
16. Ownership of products / services
16.1
Title to the Products and Services shall only pass to the Client on payment in full of all sums owing to the Company.
16.2
The Company reserves the right to retain ownership of intellectual property within any code or program it has developed, irrespective of any payment received.
17. Risk and insurance
17.1
Risk in the Products and Services passes upon delivery to the Client’s premises. Where material is transmitted electronically, risk passes to the Client at the moment of transmission, not of receipt.
17.2
The Client shall be responsible for effecting all necessary insurance in respect of any loss, damage or expense it may suffer in relation to the provision or non-provision of the Company’s Products and Services.
18. Disclaimers
18.1
The Company cannot be held liable for any information contained within the Client’s website or printed literature.
18.2
The Client is liable for any reasonable legal costs incurred by the Company caused by the content of the Client’s website.
18.3
If Search Engine Optimisation has been agreed as part of the contract, the Client must be aware that ranking position is controlled by the search engines and we cannot make guarantees on it.
18.4
The Company does not represent, warrant or guarantee that the Client’s URLs will achieve any particular position.
19. Liability and indemnity
19.1
The Client will indemnify the Company, its staff, contractors and agents for any loss or damage suffered as a result of failure to obtain any necessary licence or consent.
19.2
The Company shall not be liable to the Client for any indirect, special or consequential loss or damage (including but not limited to loss of profit, business, contracts or goodwill).
19.3
The Company shall not be held responsible for the operation of any project commissioned. It is the Client’s responsibility to undertake full and thorough testing.
19.4
The Company will not be liable for any loss, damage or expense arising in connection with the execution of a contract in excess of the contract invoice value.
19.5
The Company shall not be held responsible for the suitability or commercial performance of any e-commerce site commissioned, nor accept liability for any financial loss resulting from the use of any e-commerce website.
19.6
Nothing in this condition shall exclude or limit the Company’s liability for personal injury or death arising from the Company’s negligence.
20. Claims
20.1
All claims in respect of non-execution of the Contract must be made in writing and received by the Company no later than fourteen (14) days of the date of delivery to the Client. Notification should contain sufficient detail to enable the Company to respond to the claim.
21. Warranty
21.1
The Company warrants that all new items of equipment supplied shall be free from material defect for 12 calendar months from the date of invoice. Manufacturer’s warranty supersedes any warranty stated herein.
21.2
The Company disclaims, to the extent permissible by law, all liability for defects in software products or for misconfiguration or misuse thereof.
21.3
The Company shall not be liable for any failure caused by factors outside its control.
21.4
The Company excludes any responsibility for incompatibility issues brought about by upgrades or changes in third-party products.
21.5
The Services shall be performed in a timely, professional and workmanlike manner. The Company does not warrant that any software it develops will be free from all defects.
22. Termination
22.1
The Company may terminate this Contract immediately if the Client fails to pay any sum due, or if the Client commits a material breach not remedied within 7 days of a written request to do so.
22.2
Termination is without prejudice to any of the Company’s other rights or remedies. This applies if the Client makes any voluntary arrangement with creditors, becomes bankrupt or goes into liquidation.
22.3
The Company is entitled to cancel the contract or suspend further deliveries without liability. If Products or Services have been delivered but not paid for, the price becomes immediately due and payable.
22.4
Should the Client cease communication with the Company for at least 8 months, this shall be deemed termination and clause 22.3 becomes applicable.
22.5
Should the Client wish to cancel at any point, they remain liable for the work that has taken place. Such cancellation invoice shall not be less than 75% (or greater than 100%) of the quotation price.
22.6
An interim invoice will be levied for up to 65% of the total quotation value (less any deposit already received) if the commissioned project’s content is not received within 60 days of commission.
23. Force majeure
23.1
The Company shall not be liable for any loss or damage suffered as a result of delivery being delayed, prevented, hindered or made uneconomic by reason of circumstances beyond the Company’s control — including but not limited to: war, flood, storm, riot, fire, accident, civil commotion, acts of God, government action, failure of power supply, equipment failure, lock-out, strike, default or failure of subcontractor or supplier, trade dispute, labour disturbance, or any other cause beyond its reasonable control.
Hayes Computing Solutions Ltd, trading as HCOMS · Registered in England, company no. 04254140 · 31 Gt. Melton Road, Hethersett, Norwich, Norfolk NR9 3AB · Contact hello@hcoms.co.uk