TERMS AND CONDITIONS of BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND LTD – Last Updated 2020
“BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND” its registered office at 24 Balgeddie Gardens, Glenrothes, Fife, Scotland, KY6 3QR;
“Business Day” means any day (other than a Saturday or Sunday) when banks are generally open for normal business in Scotland;
“Charges” means the Design and Development Charges and the Support Charges;
“Customer” means the customer for whom a Proposal has been prepared;
“Design and Development or Marketing Charges” means the charges to be levied in respect of the Design and Development or Marketing Services;
“Design and Development or Marketing Services” means the design and development or Marketing services to be supplied to the Customer as set out in the Proposal;
“Inappropriate Content” has the meaning assigned to it in Clause 11.1;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, trade or business names and domain names, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database right or semi-conductor topography right, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, 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;
“Materials” means the content provided to BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND by the Customer from time to time for incorporation in the website;
“Minor Changes” includes small textual changes to content pages, menus and banner text;
“Milestone Dates” means the milestone dates as set out in the Proposal;
“Performance” means the work done by BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND to fulfil the Services detailed in the Proposal;
“Proposal” means the proposal provided to the Customer detailing the Services;
“Server” means the server upon which the website is hosted;
“Services” means the Design and Development or Marketing and Support Services to be provided as detailed in the Proposal;
“Site” means the website referred to in the Proposal;
“Support Charges” means the charges levied in respect of the Support Services as specified in the Proposal;
“Support Services” means the support services to be supplied to the Customer as set out in the Proposal and any other support services as agreed between the parties from time to time; and
“Terms and Conditions” means these terms and conditions.
In these Terms and Conditions:
references to including and includes shall mean including without limitation;
words in the singular shall include the plural and vice versa;
references to Clauses are to the clauses of these Terms and Conditions;
any reference to persons shall be deemed to include references to natural persons, to firms, to partnerships, to companies, to corporations, to associations, to organisations, to trusts (in each case whether or not having separate legal personality) but references to individuals shall be deemed to be references to natural persons only;
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 and includes any subordinate legislation for the time being in force made under it;
references to content include any kind of text, information, image, or audio or video material which can be incorporated in a Site; and writing or written includes faxes and email.
2. SERVICES
2.1 In consideration of the Charges BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND will provide the Services to the Customer with reasonable skill and care in accordance with these Terms and Conditions.
2.2 BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND reserves the right to use sub-contractors, consultants and agents in the supply of the Services to the Customer.
3. COMMENCEMENT OF TERMS AND CONDITIONS
3.1 BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND shall not carry out the Services until these Terms and Conditions have been accepted by the Customer accordance with Clause 3.2.
3.2 The Customer accepts that these Terms and Conditions will govern the provision of the Services by delivering to BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND a signed and dated copy of the Proposal. Charges in the Proposal are valid for a period of 30 days from its date, provided that BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND has not previously withdrawn it, or if an alternative shorter time period is stipulated in the proposal.
3.3 BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND shall use its reasonable endeavours to provide the Services in accordance with the Proposal, but any timescales and Charges detailed in the Proposal are estimates only and time for performance by BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND shall not be of the essence.
3.4 These Terms and Conditions shall prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other document supplied by the Customer, or implied by trade custom, practice or course of dealing.
4. CUSTOMER RESPONSIBILITIES
4.1 The Customer acknowledges that BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND’s 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 any information and data the Customer provides to the Supplier, accordingly, the Customer shall:
4.1.1 provide BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND with access to, and use of, all information, data and documentation, electronic or otherwise, reasonably required by DIGITAL EXCELLENCE SCOTLAND for the performance by DIGITAL EXCELLENCE SCOTLAND of its obligations under these Terms and Conditions; and
4.1.2 allow BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND all necessary access to computer systems and other locations, as reasonably required by BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND for the performance by BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND of its obligations under these Terms and Conditions, including the necessary read/write permissions, usernames and passwords; and
4.1.3 supply BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND with:
(a) all text in electronic format as standard text (.txt), MS Word (.doc), or USB, or via e-mail; and
(b) all images in a format as prescribed by DIGITAL EXCELLENCE SCOTLAND in a quality suitable for use without any subsequent image processing.
4.2 The Customer shall be responsible for:
4.2.1 the accuracy and completeness of the Materials on the Site;
4.2.2 the content of all e-mails that are transmitted by it and its employees;
4.2.3 the Customers use of any networks connected to the Website; and
4.2.4 the payment of all hosting fees which are required in order to make a Website live.
4.3 The Customer shall keep secure any identification, password and other information relating to the Customers account access to online marketing tools provided by BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND and shall notify BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND immediately of any known or suspected unauthorised use of their account or breach of security, including loss, theft or unauthorised disclosure of the Customer password or other security information.
4.4 The Customer shall observe the procedures, which BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND may from time to time prescribe and shall make no use of the Server which may be detrimental to BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND’s other customers.
4.5 The Customer shall be liable to pay to BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND, on demand, all reasonable costs, charges or losses sustained or incurred by BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND that arise directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under these Terms and Conditions, subject to BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND confirming such costs, charges and losses to the Customer in writing.
5. LIMITATION OF LIABILITY
5.1. All conditions, terms, representations and warranties relating to the Services supplied under this Agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded, subject always to subclause 5.2.
5.2. Nothing in these terms and conditions shall exclude our liability for death or personal injury resulting from our negligence.
5.3. Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim.
5.4. In any event no claim shall be brought unless you have notified us of the claim within one year of it arising.
5.5. In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
6. ADDITIONAL SERVICES
6.1 In consideration of the fees at Clause 6.2, BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND will provide the Customer, on their written request, with a complete backup of the Site from the Server. For smaller Sites this will be emailed to the Customer in a ZIP file. For larger Sites, DIGITAL EXCELLENCE SCOTLAND shall make up a USB stick and send this via post.
6.2 Creating a complete Site backup and sending to the customer costs will be charged on a “time spent” basis at an hourly rate of £140. If an additional (e.g. up-to-date) database dump is required then this is again charged on a “time spent” basis.
6.3 Where BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND provides the Customer with a static copy of the Site under Clause 6.1, the copy is fixed at the date the backup was made from the Server.
7. PROJECT ACCEPTANCE
7.1. At the time of proposal, BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND will provide the customer with a written estimate or quotation.
7.2. A copy of the written estimate or quotation is to be signed and dated by the customer to indicate acceptance and should be returned to BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND Alternatively, the client may send an official order in reply to the estimate or quotation which binds the client to accept BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND’s terms and conditions. No work on a project will commence until either document has been received and accepted by BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND
7.3. All work is carried out by BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND on the understanding that the client has agreed to BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND terms and conditions.
7.4. Copyright is retained by BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND on all work including words, ideas and illustrations unless/until specifically released in writing and after all costs have been settled.
8. CHARGES
8.1 All Charges are normally subject to VAT at the applicable rate of 20%. All payments in respect of the Charges must be in Pounds Sterling.
8.2 Support Charges – The Customer shall pay to BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND the Support Charges in advance of the provision of the Support Services. The first payment made in respect of the Support Charges will fall due within 7 days of the date of receipt of an invoice and the Support Services will not commence until such payment is made. Thereafter, the Support Charge will be due each month until termination of these Terms and Conditions. BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND reserve the right to change the Support Charges pricing at any time providing 30 days notice is given in writing. Where the Support Charges are to be paid by standing order, the standing order shall be set up prior to the commencement of the Support Services.
8.3 Design and Development or Marketing Charges – At the time of the Customer’s signed acceptance of the Proposal in accordance with Clause 3.2, a non-refundable deposit will immediately become due and work on the Design and Development Services shall not commence until BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND has received this amount. The Customer will pay the Design and Development Charges within 7 days of the date of receipt of an invoice.
8.4 Without prejudice to BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND’s other rights and remedies, if the Customer fails to pay the Charges on the due date, BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND may:
8.4.1 charge interest on such sum from the due date for payment at the rate of 4% per annum above the base rate for the time being of BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND bank accruing on a daily basis until payment is made, whether before or after any judgment and BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
8.4.2 if payment remains outstanding for 30 days, suspend all Services until payment has been made in full.
8.5 All charges are quoted exclusive of all travel, miscellaneous and other expenses. All expenses incurred by BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND in performing the Services shall be reimbursed by the Customer.
9. ACCOUNT DEFAULT
9.1. An account shall be considered default if it remains unpaid for 30 days from the date of invoice, or following a returned cheque. This does not relieve the customer of it’s obligation to pay the due amount. Customers whose accounts become default agree to pay BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND reasonable legal expenses and third party collection agency fees in the enforcement of these Terms and Conditions.
10. ALTERATIONS TO PROJECT PLAN
10.1. The customer agrees that changes required over and above the estimated work or required to be carried out after acceptance of the draft plan proposed by BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND will be liable to a separate charge.
10.2. The customer also agrees that BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND holds no responsibility for any amendments made by any third party, before or after a strategic plan is implemented.
11. SITE CONTENT
11.1 The Customer shall ensure that the Materials on the Site 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, menacing or in breach of any third party Intellectual Property Rights) (the “Inappropriate Content”).
11.2 BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND reserve the right to remove any Material from the Site which BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND deems Inappropriate Content without notice to the Customer.
11.3 The Customer shall indemnify BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.
12. SUSPENSION AND TERMINATION
12.1 BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND may terminate and/or suspend the provision of the Services immediately on providing the Customer with written notice:
12.1.1 if the Customer fails to pay any sums due to BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND within 30 days of the due date;
12.1.2 if the Customer is in material breach of these Terms and Conditions;
12.1.3 if the Customer is a company and becomes insolvent or suffers the appointment of an administrator or administrative receiver or enters into a voluntary arrangement with creditors;
12.1.4 if the Customer uses, or allows to be used, more than one log-in session under any one account;
12.1.5 if the Customer, having multiple accounts, uses or allows to be used more than one login session per system account at any time; or
12.1.6 if Customer assigns or transfers any of its rights or obligations under these Terms and Conditions without the prior written consent of BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND.
12.2 On termination of these Terms and Conditions or suspension of the Services by BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND in accordance with this Clause 12 BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND shall be entitled to immediately to block the Site and remove all data located on it.
12.3 The Customer may cancel the Services at any time on providing BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND with one month’s written notice, unless otherwise provided for in the Proposal.
12.4 In respect of a cancellation of the Services in accordance with Clause 12.3 BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND will invoice the Customer for all work completed over and above the non-refundable deposit paid in accordance with Clause 6.3. The balance of any monies due in respect of the Charges must be paid within 7 days of such invoice.
13. CONSEQUENCES OF SUSPENSION OR TERMINATION
13.1 On termination of these Terms and Conditions for any reason the Customer shall immediately pay to BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND all of BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND may submit an invoice, which shall be payable immediately on receipt.
13.2 Where Services are suspended or terminated in accordance with Clause 12:
13.2.1 no refunds will be made for Charges paid in advance in respect of the Services; and
13.2.2 access to files, databases and other content is denied and will be deleted after 10 days of suspension or termination.
13.3 Where Services are terminated, publication and/or release of any deliverables completed by BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND may not take place before all Charges have been settled.
13.4 If the Customers requires access to files, databases and other content on the Site before they are deleted in accordance with Clause 13.2.2, account reactivation will be required.
13.5 A £100 charge shall be payable by the Customer in order to reactivate the Site to cover administration costs.
13.6. Cancellation of projects may be made initially by telephone contact, or e-mail, however, following this, BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND will need formal notification in writing from the company’s postal address. The client will then be invoiced for all work completed over and above the non-refundable deposit that will have been made at the time of first ordering. The balance of monies due must be paid within 14 days. Please note: any cancellation which is not formally confirmed in writing and received by BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND within 14 days of such instruction being issued, will be liable for the full quoted cost of the project.
13.6 Termination of these Terms and Conditions shall not affect the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
14. DEVELOPMENT AND ACCEPTANCE OF THE SITE
14.1 The Design and Development and or Marketing Services supplied under these Terms and Conditions shall continue to be supplied until the Site is accepted by the Customer in accordance with Clause 5.2.
14.2 The Customer will have accepted, or be deemed to have accepted the Site on the earlier of:
14.2.1 the date when BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND receives a signed project sign-off document; or
14.2.2 the date upon which the Site goes live.
14.3 If the Customer requests any changes which are not considered Minor Changes by BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND, such changes shall be carried out in accordance with the Alteration provisions contained in Clause 16.
15. SEARCH ENGINE OPTIMIZATION
15.1. Not all websites have the same ability to be tuned for web promotion purposes. Extensive use of non compatible plugins, templates or insufficient amounts of active content all have an effect on a website’s ability to achieve a high ranking on search engines.
15.2. For web promotion work the contract should run for a minimum of 12 months if the proposed strategies are to have any chance of success. Whilst not being asked to commit to a minimum contract period the customer agrees to pay for the web promotion for the minimum agreed term shown with a willingness to commit to proven strategies.
15.3. For web promotion contracts, the agreement will automatically continue after the minimum agreement term, at the current prevailing prices unless at least 28 days before the anniversary date either party serves written notice on the other that this agreement shall not be renewed.
15.4. If the client modifies the website without prior agreement with BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND or website developer then we cannot take responsibility for the performance of the rankings and the contract would become null a void.
15.5. Due to the infinite number of considerations that search engines use when determining a site’s ranking, BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND cannot guarantee any particular placement. Acceptance by any search engine cannot be guaranteed and when a site is accepted, the time it takes to appear in search results varies from one search engine to another. Rankings will also vary as new sites are added.
15.6. The client agrees to allow BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND all necessary access to computer systems and other locations, as required, in order to complete a website analysis/audit, SEO/Marketing project and until all due funds are cleared, including the necessary read/write permissions, usernames and passwords. The customer also agrees to allow BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND access to any computer systems, usernames and passwords required to remove data and/or sites for failure to comply with these Terms and Conditions.
15.7. The customer agrees to supply BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND with all necessary materials, electronic, or otherwise, required to create and complete the project, and to supply them in a timely manner.
16. PUBLICATION
The Customer hereby allows BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND to refer to designs produced as a result of the Design and Development Services in its marketing and promotional material and to provide a link from the Site to BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND’s own website.
17. REVISIONS
17.1. BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND reserves the right to revise, amend, or modify these Terms and Conditions, and any of our other policies and agreements at any time and in any manner. Notice of any revision, amendment, or modification will be posted in accordance with our Terms and Conditions.
18. RIGHTS OF REFUSAL
18.1. BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND will not include in its project work, any text, images or other data which it deems to be immoral, offensive, obscene or illegal. All advertising material must conform to all standards laid down by all relevant advertising standards authorities. BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND also reserves the right to refuse to include submitted material without giving reason. Any images and/or data that BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND does include in all good faith, and then finds out that it contravenes these Terms and Conditions, the customer is obliged to allow BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND to remove the contravention without hindrance, or penalty. BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND is to be held in no way responsible for any such data being included
19. DISCLAIMER
19.1. BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND makes no warranties of any kind, express or implied, for any and all products and/or services that it supplies. BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND will not be held responsible for any and all damages resulting from products and/or services it supplies. BRIAN MATHERES DIGITAL EXCELLENCE SCOTLAND is not responsible for any loss, or consequential loss of data, or non-delivery of products or services, of whatever cause. While we take reasonable steps to investigate the materials we recommend, we accept no responsibility for the performance or quality of materials or any consequential loss arising from their failure. The customer agrees not to hold BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND responsible for any such loss or damage. Any claim against BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND shall be limited to the relevant fee(s) paid by the customer.
19.2. BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND reserves the right to use the services of sub-contractors, agents and suppliers and any work, content, services and usage is bound by their Terms and Conditions. ICT Advisor.com will not knowingly perform any actions to contravene these and the client also agrees to be so bound.
20. GENERAL
20.1. These Terms and Conditions supercede any previous Terms and Conditions distributed in any form. BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND reserves the right to change any rates and any of the Terms and Conditions at any time and without prior notice.
21. APPLICABLE LAW
21.1. This Agreement shall be governed by and construed in accordance with Scottish law and you hereby submit to the nonexclusive jurisdiction of the Scottish courts.
22. HEADINGS
22.1. Headings are included in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.
23. ACCEPTANCE OF PROPOSAL, QUOTATION AND TERMS AND CONDITIONS
23.1. The placement of an order for the services offered and/or any other services offered by BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND and validated by the customer’s signature on the proposal or quote, constitutes acceptance of the proposal or quote and agreement to comply fully with all the Terms and Conditions and forms a Contract for Business between the signatory and BRIAN MATHERS DIGITAL EXCELLENCE SCOTLAND.