Website Hosting, Design and Development

Terms and Conditions


CONTENTS

  1. Interpretation
  2. Scope of the Project
  3. Customer Responsibilities
  4. Development and Acceptance of Site
  5. Third Party Products
  6. Project Management
  7. Fees and Payment
  8. Warranties
  9. Limitation of Remedies and Liability
  10. Intellectual Property Rights
  11. Site Content
  12. Data Protection
  13. Term and Termination
  14. Change Control
  15. Force Majeure
  16. Confidentiality
  17. Notices
  18. Publicity
  19. Assignment
  20. Entire Agreement
  21. Third Party Rights
  22. Variation and Waiver
  23. Severance
  24. Governing Law and Jurisdiction

1. Interpretation

1.1 The following definitions apply in these Conditions:-

  • 'Acceptance' means the acceptance or deemed acceptance of the Site by the Customer in accordance with clause 4.
  • 'Acceptance Tests' means the tests to be carried out on the Site as more particularly described in the Service Confirmation Form.
  • 'Business Day' means any day from Monday to Friday (inclusive) which is not a statutory or public holiday in England.
  • 'Change Control Procedures' means the procedures set out in Clause 14.
  • 'Chester Solutions' means Chester Solutions Limited a company registered in England and Wales under number 07858944 whose registered office is at 26 School Lane, Guilden Sutton, Chester, CH3 7ET, United Kingdom.
  • 'Conditions' means these terms and conditions, which, together with the Service Confirmation Form govern the contract between the parties for the provision of the Services.
  • 'Customer' means the person, business, firm or company who contracts with Chester Solutions for the provision of the Services.
  • 'Effective Date' means the date on which the contract between the parties commences. This will be the date set out in the Service Confirmation Form.
  • 'Fees' means Chester Solutions' Fees for the Services as agreed between the parties and set out in the Service Confirmation Form together with any other additional charges as may be agreed between the parties from time to time.
  • 'Intellectual Property Rights' means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
  • Materials’ means the content provided to Chester Solutions by the Customer from time to time for incorporation in the Site, including but not limited to, the Customer’s company name, logo, domain name, trademarks, images, videos and text.
  • 'Payment Terms' means the terms for payment, set out in the Invoice and the Service Confirmation Form.
  • 'Phase' means the distinct stages of work necessary for the completion of the Project. These phases are more particularly identified in the Project Plan.
  • 'Project' means the provision by Chester Solutions of the Services to the Customer in accordance with these Conditions and the Service Confirmation Form.
  • 'Project Manager' means the contact within the Customer's business appointed and authorised by the Customer to liaise with Chester Solutions about the project in accordance with clause 4.
  • 'Project Plan' means the scope of the Project and the timetable within which Chester Solutions will implement the Project as set out in the Service Confirmation Form.
  • 'Server' means a computer server administered by Chester Solutions.
  • 'Services' means the website design services, development services, domain registration and Site Hosting services (if applicable) to be provided in accordance with these Conditions and the Service Confirmation Form.
  • 'Service Confirmation Form' means the contractual document which together with these Conditions sets out the contract between the parties.
  • 'Site' means the Customer's website the URL for which is set out in the Service Confirmation Form.
  • 'Site Hosting' means website hosting services which may either be provided by Chester Solutions or a third party for consecutive periods of 1 year.
  • 'Site Software' means the software for the Site commissioned by the Customer as specified in the Service Confirmation Form.
  • 'Site Specification' means the specification for the Site set out in the Service Confirmation Form.
  • 'Third Party Products' means any third party Site Software or other products used a part of the Services as set out in the Service Confirmation Form.
  • 'Visitor' means any visitor to the Site.

1.2 A reference to a particular law is a reference to it as it is in force for the time being, taking account of any amendment, extension, application or re-enactment of it, and includes any subordinate legislation for the time being in force made under it.

1.3 Words in the singular include the plural and in the plural include the singular.

1.4 A reference to one gender includes a reference to the other gender.

1.5 Condition headings do not affect the interpretation of these conditions.

1.6 References to 'party' shall mean the Customer or Chester Solutions and 'parties' shall refer to both the Customer and Chester Solutions;

1.7 A reference to writing or related expressions includes a reference to email and comparable means of communication.

1.8 Any obligation in these Conditions on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.

1.9 The Customer and Chester Solutions can amend any of these Conditions by recording the change in the notes section of the Service Confirmation Form. In the event and to the extent only of any conflict between these Conditions and the Service Confirmation Form, the Service Confirmation Form will prevail.

1.10 References to including and include(s) mean respectively including without limitation and include(s) without limitation.

1.11 References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a Visitor to that website.


2. Scope of the Project

2.1 The scope of the Project will be more particularly set out in the Service Confirmation Form.

2.2 In any event, Chester Solutions shall:

2.2.1 Design, develop and deliver the Site in accordance with the Phases set out in the Project Plan;

2.2.2 Develop the graphic design, look and feel of the Site in accordance with the Site Specification; and

2.2.3 Provide the Site Hosting Services (if applicable).


3. Customer Responsibilities

3.1 The Customer acknowledges that Chester Solutions' ability to provide the Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of the Site Specifications and any information and data the Customer provides to Chester Solutions.

3.2 Accordingly, the Customer shall:

3.2.1 provide Chester Solutions with access to, and use of, all information, data and documentation reasonably required by Chester Solutions for the performance by Chester Solutions of its obligations under these Conditions; and

3.2.2 deal with instructions promptly when requested. If the Customer fails to respond to a request made by Chester Solutions within 30 days and/or unreasonably delays completion of one or more of the Phases set out in the Project Plan, Chester Solutions shall be entitled to Invoice the Customer for the next payment instalment due regardless of whether the Phase has been completed.

3.3 The Customer shall be responsible for the accuracy and completeness of the Materials on the Site in accordance with clause 11.


4. Development and Acceptance of Site

4.1 Chester Solutions will complete the design and development of the Site in accordance with the Phases set out in the Project Plan. Once each relevant Phase of the Project is complete Chester Solutions shall run the Acceptance Tests set out in the Services Confirmation Form which will test compliance of the Site with the Site Specification.

4.2 Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:

4.2.1 the Site has passed all relevant Acceptance Tests. Chester Solutions shall notify the customer when the tests have been passed and provide the results of the Acceptance Tests to the Customer in writing;

4.2.2 the Customer uses any part of the Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or

4.2.3 the Customer unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which Chester Solutions is ready to commence running such Acceptance Tests or retests.

4.3 If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Customer, or by one of the Customer's sub-contractors or agents for whom Chester Solutions has no responsibility ('Non-Supplier Defect'), the Site shall be deemed to have passed the Acceptance Tests.

4.4 Chester Solutions may provide assistance reasonably requested by the Customer in remedying any Non-Supplier Defect by supplying additional services or products. The Customer shall pay Chester Solutions' additional Fees for such services and products.


5. Third Party Products

5.1 All Site Software and Third Party Products shall be supplied in accordance with the relevant licensor's standard terms.

5.2 The Fee charged by Chester Solutions is inclusive of any licence fee for Site Software and/orThird Party Products set out in the Project Plan but is exclusive of any additional third party costs which may be incurred on the Customer's behalf from time to time.

5.3 Chester Solutions will inform the Customer of the purpose and cost of any additional third party costs in advance and, providing the Customer approves the cost, will let them know when any payments should be made.


6. Project Management

6.1 The Customer shall appoint a Project Manager who shall be authorised to make decisions about the Project on behalf of the business. The Project Manager shall be responsible for liaising with Chester Solutions about the Site Specification, the Project Plan and any applicable timescales.

6.2 The contact details for the Customer's Project Manager are set out in the Service ConfirmationForm. If the Customer wishes to change the named Project Manager they must give Chester Solutions at least 5 Business Days written notice of the change.


7. Fees and Payment

7.1 Chester Solutions shall issue an Invoice for the Fees for the Services agreed between the parties in accordance with the Payment Terms set out in the Service Confirmation Form.

7.2 All Fees are exclusive of VAT which shall be paid at the current applicable rate if requested.

7.3 The Customer shall pay to Chester Solutions the Fees set out in such Invoice within 14 days of the date of the Invoice.

7.4 If the Customer fails to pay any of the Fees within 28 days following the date on which they fall due, then Chester Solutions shall be entitled to interest on the overdue amount. Such interest shall be payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at a rate of 5% per annum above the applicable Bank of England base rate. Such interest shall accrue on a daily basis and be compounded quarterly.


8. Warranties

8.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform the obligation under these Conditions and the Service Confirmation Form.

8.2 Chester Solutions shall perform the Services with reasonable care and skill.

8.3 Chester Solutions warrants that the Site will perform substantially in accordance with the Site Specification for a period of:

8.3.1 three months from Acceptance for Customers who have not purchased Site Hosting services from Chester Solutions; or

8.3.2 twelve months from Acceptance for Customers who have purchased Site Hosting services from Chester Solutions.

8.4 If the Site does not perform in accordance with clause 8.2 above, Chester Solutions shall, for no additional charge, carry out any work necessary in order to ensure that the Site substantially complies with the Site Specification.

8.5 The warranty set out in clauses 8.2 and 8.3 shall not apply to the extent that any failure of the Site to perform substantially in accordance with the Site Specification is caused by any Materials or any work carried out subsequently by the Customer or third parties.

8.6 The Service Confirmation Form and these Conditions set out the full extent of Chester Solutions'obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into the Conditions or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.


9. Limitation of Remedies and Liability

9.1 Nothing in these Conditions shall operate to exclude or limit Chester Solutions' liability for:

9.1.1 death or personal injury caused by its negligence;

9.1.2 any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;

9.1.3 fraud; or

9.1.4 any other liability which cannot be excluded or limited under applicable law.

9.2 Chester Solutions shall not be liable to the Customer for any damage to software, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.

9.3 Subject to clause 9.1, Chester Solutions' aggregate liability in respect of claims in any calendar year arising out of or in connection with these Conditions, the Service Confirmation Form or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the total Fees payable by the Customer to Chester Solutions under these Conditions in that calendar year.

9.4 Chester Solutions makes no representation that the operation of their Server will be uninterrupted or error-free, and Chester Solutions will not be liable for the consequences of any interruptions or errors.


10. Intellectual Property Rights

10.1 All Intellectual Property Rights in the Site (including in the content of the Site and the Site Software), but excluding the Materials, arising in connection with these Conditions shall be the property of Chester Solutions, and Chester Solutions hereby grants the Customer a nonexclusive licence of such Intellectual Property Rights for the purpose of operating the Site.

10.2 The Customer shall indemnify Chester Solutions against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.

10.3 Chester Solutions shall indemnify the Customer against all damages, losses and expenses arising as a result of any action or claim that the Site infringes any Intellectual Property Rights of a third party in the UK, other than infringements referred to in clause 10.2.

10.4 The indemnities in clause 10.2, clause 10.3 and clause 11.4 are subject to the following conditions:

10.4.1 the indemnified party promptly notifies the indemnifier in writing of the claim;

10.4.2 the indemnified party makes no admissions or settlements without the indemnifier's prior written consent;

10.4.3 the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and

10.4.4 the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.

10.5 The indemnities in clause 10.2, clause 10.3, clause 11.4 and clause 11.5 may not be invoked to the extent that the action or claim arises out of the indemnifier's compliance with any designs, specifications or instructions of the indemnified party.


11. Site Content

11.1 During the implementation of the Project Plan Chester Solutions shall update the Site with Materials provided from time to time by the Customer. The Customer shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) ('Inappropriate Content').

11.2 If Chester Solutions is providing Site Hosting services to the Customer, Chester Solutions shall:

11.2.1 Grant the Customer access to the Server in order to update information held on the Site; and

11.2.2 Include only Materials on the Site.

11.3 The Customer acknowledges that Chester Solutions has no control over any content placed on the Site by Visitors and does not purport to monitor the content of the Site. Chester Solutions reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. Chester Solutions shall notify the Customer promptly if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.

11.4 The Customer shall indemnify Chester Solutions against all damages, losses and expenses arising as a result of any action or claim that the Materials or Visitor content constitutes Inappropriate Content.

11.5 Chester Solutions may include the statement 'Designed [and hosted] by Chester Solutions' on the home page of the Site in a form to be agreed.


12. Data Protection

12.1 Chester Solutions warrants that, to the extent it processes any Personal Data, as defined in the Data Protection Act 1998, on behalf of the Customer:

12.1.1 it shall act only on instructions from the Customer; and

12.1.2 it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.

12.2 This clause will only apply where Chester Solutions processes personal data concerning Visitors to the Site on behalf of the Customer.


13. Term and Termination

13.1 The contract between the parties shall commence on the Effective Date.

13.2 For Customers who have not purchased Site Hosting Services, the contract shall continue until Acceptance of the Site has taken place and the Customer has paid all outstanding Fees, unless terminated earlier pursuant to this clause 13.4.

13.3 For Customers who have purchased Site Hosting services from Chester Solutions, the contract shall be for an initial period of 12 months ('Initial Term') and shall continue for successive periods of 12 months ('Renewal Term') unless the Customer gives no less than 60 days' written notice to Chester Solutions to cancel the contract prior to the expiry of the Initial Term or subsequent Renewal Term or the contract is terminated earlier pursuant to clause 13.4. If such written notice is served the contract shall come to an end on the expiry of that Initial or Renewal Term.

13.4 Either party may terminate this agreement immediately at any time by written notice to the other party if:

13.4.1 that other party commits any material breach of its obligations under this agreement which (if remediable) is not remedied within 30 days after the service of written notice specifying the breach and requiring it to be remedied; or

13.4.2 that other party:

(a) ceases to trade (either in whole, or as to any part or division involved in the performance of this agreement); or

(b) becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or

(c) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or

(d) the ability of that party's creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party's creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or

(e) any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).

13.5 On termination of this agreement by Chester Solutions pursuant to clause 13.4, all licences granted by Chester Solutions under this agreement shall terminate immediately and any Fees owed shall immediately fall due.

13.6 On expiry or termination of this agreement otherwise than on termination by Chester Solutions pursuant to clause 13.4, Chester Solutions shall promptly return all Materials to the Customer, and shall provide to the Customer an electronic copy of the Site (including all content on the Site). Chester Solutions shall provide such assistance as is reasonably required by the Customer in transferring the hosting of the Site to the Customer or another service provider, subject to the payment of Chester Solutions' expenses reasonably incurred.

13.7 On expiry or termination of this agreement, all provisions of this agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.


14. Change Control

14.1 Any request to change the scope of the Services shall be processed in accordance with the Change Control Procedure set out below.

14.2 Chester Solutions and the Customer shall discuss any change to the Scope of the Services ('Change') proposed by the other and such discussion shall result in either:

14.2.1 a written request for a Change by the Customer; or

14.2.2 a written recommendation for a Change by Chester Solutions.

14.3 If neither the Customer nor Chester Solutions wishes to submit a request or recommendation, the proposal for the Change will not proceed.

14.4 Where a written request for a Change is received from the Customer, Chester Solutions shall, unless otherwise agreed, submit a Change Control Note (CCN) to the Customer within the period agreed between them from the date of receipt of such request for a Change, or inform the Customer that Chester Solutions is not able to comply with such written request for a Change.

14.5 A written recommendation for a Change by Chester Solutions shall be submitted as a CCN direct to the Customer at the time of such recommendation.

14.6 Each CCN shall contain:

14.6.1 the date of the request or recommendation for the Change;

14.6.2 the reason for the Change;

14.6.3 the full details of the Change, including any additional specifications;

14.6.4 details of any additional Fees associated with the Change;

14.6.5 a timetable for implementation, together with any proposals for Acceptance of the Change;

14.6.6 provision for signature of the CCN by the Customer and Chester Solutions.

14.7 For each CCN submitted, the Customer shall evaluate the CCN, and as appropriate either;

14.7.1 request further information;

14.7.2 approve the CCN; or

14.7.3 notify Chester Solutions of the rejection of the CCN.

14.8 If approved, arrange for two copies of the approved CCN to be signed for and on behalf of the Customer and Chester Solutions. The signing of the CCN shall signify acceptance of a Change by both the Customer and Chester Solutions.

14.9 Once signed by the Customer and Chester Solutions in accordance with paragraph 14.8, the Change shall be immediately effective and the Customer and Chester Solutions shall perform their respective obligations on the basis of the agreed amendment.


15. Force Majeure

15.1 A 'Force Majeure Event' is any event arising which is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war).

15.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this agreement shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event.


16. Confidentiality

16.1 'Confidential Information' means all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:

16.1.1 identified as confidential at the time of disclosure; or

16.1.2 ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

16.2 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

16.3 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.

16.4 The obligations set out in this clause 16 shall not apply to Confidential Information which the receiving party can demonstrate:

16.4.1 is or has become publicly known other than through breach of this clause 16; or

16.4.2 was in possession of the receiving party prior to disclosure by the other party; or

16.4.3 was received by the receiving party from an independent third party who has full right of disclosure; or

16.4.4 was independently developed by the receiving party; or

16.4.5 was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.

16.5 The obligations of confidentiality in this clause 16 shall not be affected by the expiry or termination of this agreement.


17. Notices

17.1 All notices between the parties about these Conditions and/or the Service Confirmation Formshall be in writing and sent by pre-paid first class post or by email.

17.2 Notices shall be deemed to have been served / received:

17.2.1 if sent by pre-paid first class post, two Working Days after posting (exclusive of the day of posting); or

17.2.2 if sent by email on a Working day prior to 5.00 p.m., at the time of transmission and otherwise on the next Working day.

17.3 All other communications between the parties should be made by email or telephone.

17.4 All notices sent to Chester Solutions should be sent to 26 School Lane, Guilden Sutton, Chester, CH3 7ET, United Kingdom or such changed address as shall be notified to the Customer by Chester Solutions or by email to info@chestersolutions.co.uk.

17.5 All notices to the Customer should be sent to the address or email address provided by the Customer to Chester Solutions.

17.6 To prove service, it is sufficient to prove that the notice was transmitted by e-mail to the relevant party or, in the case of post, that the envelope containing the notice was properly addressed and posted.


18. Publicity

All media releases, public announcements and public disclosures by either party relating to this agreement or its subject matter, including promotional or marketing material, shall be coordinated with the other party and approved jointly by the parties prior to release.


19. Assignment

19.1 The Customer may not assign or transfer any of its rights or obligations under these Conditions or the Service Confirmation Form without the prior written consent of Chester Solutions.

19.2 Chester Solutions may assign or transfer any of its rights or obligations under these Conditions or the Service Confirmation.


20. Entire Agreement

20.1 These Conditions together with the Service Confirmation Form constitutes the entire agreement between the parties regarding its subject matter and supersedes and replaces any and all prior agreements, understandings or arrangements between the parties, whether oral or in writing, with respect to the same.

20.2 No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to the signing of the Service Confirmation Form except as expressly stated.

20.3 Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into the Service Confirmation Form (unless such untrue statement was made fraudulently) and that party's only remedies shall be for breach of contract as provided in these Conditions.


21. Third Party Rights

The parties do not intend that any term of the Conditions or the Service Confirmation Form shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.


22. Variation and Waiver

22.1 A variation of the Conditions or the Service Confirmation Form shall be in writing and signed by or on behalf of both parties.

22.2 A waiver of any right under the Conditions or the Service Confirmation Form is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.

22.3 Unless specifically provided otherwise, rights arising under the Conditions and the Service Confirmation Form are cumulative and do not exclude rights provided by law.


23. Severance

23.1 If any provision (or part of a provision) of the Conditions and the Service Confirmation Form is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

23.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.


24. Governing Law and Jurisdiction

24.1 The Conditions, the Service Confirmation Form and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England.

24.2 The parties irrevocably agree that the Courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Conditions, the Service Confirmation Form or its subject matter or formation (including non-contractual disputes or claims).

Version 1.0.1 - April 2013

More in this category: Privacy Policy »