The following definitions and rules of interpretation apply in this agreement.
Booking Form: A form completed by the Customer in order to arrange in advance, the Services offered by the Supplier.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Customer Default: has the meaning given in Clause 4.2.
Commencement Date: has the meaning given in Clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with Clause 13.8.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Services from the Supplier.
Data Controller: has the meaning set out in GDPR Article 24 and section 1(1) of the Data Protection Act 1998.
Data Subject: an individual who is the subject of Personal Data.
Deliverables: the deliverables set out in the Order produced by the Supplier for the Customer.
Force Majeure Event: has the meaning given to it in Clause 12.
GDPR: General Data Protection Regulation.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s written acceptance of the Supplier’s Proposal or Quotation.
Personal Data: has the meaning set out in GDPR Article 4.1 and section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which the Supplier is providing Services under the Contract.
Processing and process: have the meaning set out by GDPR Article 4.2 and section 1(1) of the Data Protection Act 1998.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services provided by the Supplier to the Customer.
Supplier: Galactic Digital – the trading name for Buffalo Media Ltd, registered in England and Wales with company number 06105982.
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e) A reference to writing or written includes faxes and emails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Customer issues written acceptance of the Order at which point, and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions Apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
2.6 All of these Conditions Shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. SUPPLY OF SERVICES
3.1 These Terms and Conditions apply to the following services (with full details of the specific services which are to be provided to be detailed on the Booking Form), provided by the Supplier:
- Website Design and Development:
To include, but not limited to:
- Hosting, Support and Security;
- The term of the agreement will be 12 months, with a free website review upon conclusion. The Customer will then be permitted to choose one of the following:
- receive a new website and commence a further 12 month term;
- retain their current website and proceed onto the Website Care Package with a monthly rolling term;
- retain their current website and proceed onto the Website Hosting & Email Package with a 12 monthly rolling term;
- take their website elsewhere, upon providing the Supplier with Termination notice, in accordance with Clause 10.
- Search Engine Optimisation
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier is permitted, unless the Customer explicitly objects in writing, to place a link to the Supplier’s own website on the Customer’s website. This will usually be in the form of a small logo or line of text placed towards the bottom of the page.
3.5 The Supplier is permitted, unless the Customer explicitly objects in writing, to place websites, along with a link to the Customer’s site on the Supplier’s own website for demonstration purposes and to use any designs in its own publicity and portfolios.
3.6 The Supplier is unable to guarantee the availability of any domain name. Where the Supplier is required to register a domain name on behalf of the Customer, the Supplier will use their best endeavours to do so, but the Customer should not assume a successful registration. The Supplier will therefore notify the Customer should their domain of choice be not available and offer the best alternatives.
3.7 The Supplier cannot guarantee any particular placement in search engine rankings, due to the infinite number of considerations that search engines use when determining a site’s ranking. Acceptance by any search engine cannot be guaranteed and upon acceptance by a site, the time it takes to appear in search results will vary from one search engine to another. Rankings will also vary as new sites are added.
3.8 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.9 If the Supplier is required to supply and goods and/or services supplied by a third party, the Supplier does not give any warranty, guarantee or other term or condition as to the quality, fitness for purpose or otherwise, but shall, where possible, pass on to the Customer the benefit of any warranty, guarantee or indemnity given by such third party to the Supplier.
3.10 The Supplier reserves the right to submit a new and separate proposal, for written approval if the Customer requests changes or revisions which are deemed to be in excess of ten percent (10%) of the time required to produce the initial deliverables, and or the value or scope of the services. Work shall not begin on the revised services and/or until a fully signed revised proposal and, if required, any additional retainer fees are agreed.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Service Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(d) where a Website is being supplied, provide the Supplier with a completed website brief form (provided by Supplier) within 14 days of the Supplier’s request:
- Content (written);
- Company logo(s);
- High quality graphics and images, of at least 1500 pixels wide, failing which the Supplier reserves the right to use stock images (of high quality) not supplied by the Customer.
(e) where Search Engine Optimisation (SEO) is being supplied, provide the Supplier with the following within 14 days of the Supplier’s request:
- Access to Google Business Profile;
- Access to Google Analytics;
- Access to Client Management System at ‘back end’ of website;
- Any other specific information requested by the Supplier.
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(g) comply with all applicable laws, including health and safety laws;
(h) accept that the Supplier cannot be held responsible for the quality of any images which the Customer wishes to use, which are scanned from printed materials;
(i) test the site for functionality within the timeframe specified, when instructed to do so by the Supplier;
- maintain regular contact (in writing and/or via telephone) with the Supplier and understand that failure to do so and supply requested information within a 14 days period shall result in the Supplier requesting payment for the project in full.
4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or the Customer’s agents, sub-contractors or employees, or by failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this Clause 4.2;
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be calculated on a time and materials basis:
- the Charges shall be calculated in accordance with the Supplier’s fee stipulated in the Order and Payment will be required in accordance with Clause 5.1;
- the Supplier’s Services (see Clause 3.1) will be charged in the following manner:
Website Design and Development
- payable on a monthly basis for a minimum 12 month term, with each payment required on the monthly anniversary of commencement via direct debit or recurring card payment;
- payable on a per project basis; 50% as a deposit upon agreement and signing of the Order/Proposal and the balance 50% payable 60 days after commencement or upon completion of the website sign-off by the Customer and prior to the website going live — whichever comes first;
Care Only Package
- payable on a rolling monthly basis, with each payment required on the monthly anniversary of commencement via direct debit or recurring card payment;
Search Engine Optimisation and Other Digital Marketing Work
- payable on a monthly basis, with each payment required on the monthly anniversary of commencement via direct debit or recurring card payment;
Design and Other Work
- payable upon receipt of the invoice via direct debit or card payment.
5.2 The Supplier reserves the right to increase the charges for the Services on an annual basis with effect from the commencement of the contract or calendar year. In such circumstances, the Supplier will provide written notice of any increase, at least 14 days prior to any change;
5.3 The Customer shall pay each invoice submitted by the Supplier in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
5.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
5.5 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under Clause 10 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement. Interest under this Clause 5.5 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
5.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
6.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
6.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in Clause 6.2.
6.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
7. DATA PROTECTION AND DATA PROCESSING
7.1 The Customer and the Supplier acknowledge that for the purposes of General Data Protection Regulation (GDPR), the Customer is the Data Controller and the Supplier is the Data Processor in respect of any Personal Data.
7.2 The Supplier shall process the Personal Data only in accordance with the Customer’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Customer.
7.3 The Supplier will take all reasonable measures to ensure they adhere to its obligations under Articles 30 and 32 of GDPR taking into account the information that the Data controller has made available to it.
7.4 The Supplier shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.
7.5 Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
7.6 The Supplier warrants that, having regard to the state of technological development and the costs of implementing any measures, it will:
(a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
- the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
(ii) the nature of the data to be protected
(b) take reasonable steps to ensure compliance with those measures.
7.7 Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this Clause 7.
7.8 The Customer acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer’s instructions.
8.1 Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, Customer’s, Customer’s or Suppliers of the other party, except as permitted by Clause 8.2.
8.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 8; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
9. LIMITATION OF LIABILITY:
9.1 The total liability of Supplier to Customer from any cause whatsoever, will be limited to the lesser of Customer’s actual damages or the contractual price paid to Supplier for those Services supplied that are the subject of Customer’s claim
9.2 Subject to Clause 9.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) any claim arising from the use of graphics or images supplied by the Customer;
(g) loss of or damage to goodwill; and
(h) any indirect or consequential loss.
9.3 Subject to Clause 9.1,the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to 50% of the total charges paid under the Contract.
9.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.5 All claims against Supplier must be brought within one 1 year after the cause of action arises and Supplier waives any statute of limitations which might apply by operation of law or otherwise
9.6 This Clause 9 shall survive termination of the Contract.
10.1 Without affecting any other right or remedy available to it, either party may terminate the Contract prior to commencement of Services, by giving the other party 30 days written notice.
10.2 Without affecting any other right or remedy available to it, Supplier may terminate the Contract by providing 14 days written notice to the other party if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 48 hours of that party being notified in writing to do so;
(b) the Customer fails to pay any amount due under the Contract on the due date for payment;
(c) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(d) the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
(e) the Customer’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(f) there is a change of control of the Customer;
10.3 Without affecting any other right or remedy available to it, the Customer may terminate the Contract by providing 30 days written notice to the Supplier if:
(a) the Supplier commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
(b) the Supplier takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business
(c) the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
10.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier, if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in Clause 10.2(c) to Clause 10.2(f), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
11. CONSEQUENCES OF TERMINATION
11.1 On termination of the Contract, the Customer shall pay within 7 days to the Supplier all of the Supplier’s outstanding unpaid invoices, including the remainder of any contracted period in full (see Clause 5.1(b)) and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
11.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
11.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
12. FORCE MAJEURE
Neither party shall be liable for failure to perform, nor be deemed to be in default, under this Agreement for any delay or failure in performance resulting from causes beyond its reasonable control, including but not limited to acts of God, acts of Governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquake, riot, insurrection, civil disturbance, sabotage, embargo, blockade, acts of war, accident, epidemics, pandemics, lightning damage, electromagnetic interference, radio interference, strikes, industrial dispute, power failure or any other cause beyond its reasonable control..
13.1 Assignment and other dealings
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its principal place of business; or sent by email to the address specified in the quote or order.
(b) Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by fax or email, at 9.00 am on the next Business Day after transmission.
(c) This clause does not apply to the service of any proceedings or other documents in any legal.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
13.5 No partnership or agency
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
13.6 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misrepresentation] based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
13.7 Third parties’ rights
The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
13.9 Governing law
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.