These Terms and Conditions apply to Web Design Projects and related services. Separate documents “Website Hosting Terms and Conditions” apply to Website Hosting and Support services and “Digital Marketing Terms and Conditions” apply to Marketing services.
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Conditions: these terms and conditions as amended from time to time in accordance with clause 21.8.
Contract: the contract between Cyber Fox and the Customer for the supply of Services in accordance with these Conditions.
Completion: the date when Cyber Fox notifies the Customer that the Site in finished and ready for approval by the Customer.
Customer: the person or firm who purchases Services from Cyber Fox.
Deposit: 50% of the total amount payable under the Contract unless otherwise stated in the Contract.
Force Majeure Event: 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).
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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 rights.
Materials: the content provided to Cyber Fox by the Customer for incorporation in the Site including for the benefit of doubt the complete text and graphic content for the Site and any existing Site content.
Cyber Fox: Cyber Fox Ltd a Company registered in England and Wales with company number 10063052.
Project: the provision by Cyber Fox of the Services pursuant to the Contract.
Services: the design and development services to be provided by Cyber Fox to the Customer in accordance with the Services Specification.
Services Specification: the description or specification for the Services agreed on in writing between the Customer and Cyber Fox in the Contract.
Site: the website developed, designed and/or improved by Cyber Fox for the Customer pursuant to the Contract.
Site Specification: the Specification of the site agreed on in writing between the Customer and Cyber Fox in the Contract.
Visitor: a visitor to the Site.
1.2 Construction. In these Conditions, the following rules apply:
(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 successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes letters and e-mails.
2. Basis of contract
2.1 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.
2.2 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Cyber Fox which is not set out in the Contract.
2.3 Any samples, drawings, descriptive matter or advertising issued by Cyber Fox and any illustrations or descriptions of the Services contained in Cyber Fox’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 Any quotation given by Cyber Fox shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. Supply of services
3.1 Cyber Fox shall provide the Services to the Customer in accordance with the Service Specification in all material respects.
3.2 Cyber Fox shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Cyber Fox shall notify the Customer in any such event.
3.3 The Customer may request up to two minor revisions to the Site Specification (Customer Revisions) which Cyber Fox can at its sole discretion refuse or agree to incorporate into the Site. The Customer shall be charged an additional amount for the Customer Revisions. Cyber Fox shall provide the Customer with a costs estimate and obtain the Customer’s approval to proceed before incorporating the Customer Revisions into the Site. Under no circumstances whatsoever will Cyber Fox be liable for any delay caused by incorporating Customer Revisions into the Site.
3.4 The Deposit shall be paid by the Customer prior to Cyber Fox commencing provision of the Services.
4. Customer’s obligations
4.1 The Customer acknowledges that Cyber Fox’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 Cyber Fox. Accordingly, the Customer shall provide Cyber Fox with access to, and use of, all information, data and documentation reasonably required by Cyber Fox for the performance by Cyber Fox of its obligations.
4.2 The Customer shall be responsible for the accuracy and completeness of the Materials on the Site in accordance with clause 15.
4.3 The Customer shall confirm acceptance of the Site visual in writing to Cyber Fox. Substantial changes to the design of the Site visual will incur further costs.
4.4 The Customer shall provide Cyber Fox with all necessary details of large changes to functionality of the Site at the earliest opportunity. Substantial changes to the functionality of the Site visual will incur further costs.
5. Customers chance to test the site
5.1 Cyber Fox shall provide the Customer with an opportunity to review the appearance and content of the Site during the development phase and on Completion. On Completion of the Project the Site will be deemed to be accepted and approved by the Customer unless the Customer notifies Cyber Fox otherwise in writing within 10 working days from the date of Completion.
6. Completion date and delivery
6.1 Cyber Fox will use all reasonable endeavours to complete the Project no later than 60 days after the Customer has submitted the Materials to Cyber Fox unless otherwise specified in the Contract. Time shall not be of the essence for the performance of the Services.
6.2 Cyber Fox shall in no way be liable for any delay to completion of the Project caused by the Customer.
6.3 If the Customer does not submit the Materials within 30 days of the Date the Contract was signed the entire amount due under the terms of the Contract will become payable by the Customer.
6.4 If the Customer has still not submitted the Materials within 60 days of the date the Contract was signed an additional continuation fee of 15% of the total agreement price will be charged each month commencing on the expiry of the 60 day period from the date the Contract was signed until delivery of the Site or the Customer cancels the Contract in writing.
6.5 If Cyber Fox fails to complete the Project its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price stated in the Contract. Cyber Fox shall have no liability for any failure to complete the Project to the extent that such failure is caused by a Force Majeure Event, the Customer’s failure to provide Cyber Fox with adequate delivery instructions or the Customer’s failure to provide the Materials.
6.6 Delivery of the Site shall take place within 60 days of receipt by Cyber Fox of the total amount owing by the Customer under the Contract. Delivery may be accomplished by live publishing or electronic transfer to the Customer’s address provided on the Contract.
7.1 The price for the Services shall be as out in the Contract.
7.2 Invoices will be raised by Cyber Fox on or after Completion of the Project but before delivery. Invoices are sent by email although the Customer may elect to receive hard copy invoices.
7.3 The Customer shall pay each invoice submitted by Cyber Fox:
(a) within 10 working days of the date of the invoice, unless otherwise stated in the contract; and
(b) in full and cleared funds to a bank account nominated in writing by Cyber Fox, and
time for payment shall be the essence of the contract.
7.4 If the Customer fails to make any payment due to Cyber Fox under the Contract by the due date for payment Cyber Fox may at its sole discretion suspend any ongoing work and Services. Cyber Fox reserves the right to take down the Site until confirmation of payment has been received.
7.5 If the Customer fails to make any payment due to Cyber Fox under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Royal Bank of Scotland’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.6 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. Cyber Fox may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Cyber Fox to the Customer.
8.1 In the event of termination by the Customer in accordance with clause 17.1 if Cyber Fox has commenced work on the Project but it has not yet been completed only half the Deposit paid by the Customer under the Contract shall be refundable.
8.2 Cyber Fox’s 30 day money back guarantee, applicable only if expressly stated on the Contract, excludes all domain name registration fees incurred by Cyber Fox.
9.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.
9.2 Cyber Fox shall perform the Services with reasonable care and skill.
9.3 Cyber Fox warrants that the Site will perform substantially in accordance with the Site Specification for a period of two months from Completion. If the Site does not so perform, Cyber Fox shall, for no additional charge, carry out any work necessary in order to ensure that the Site substantially complies with the Site Specification.
9.4 The warranty set out in clause 9.3 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.
9.5 This agreement sets out the full extent of Cyber Fox’s 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 this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
10. Limitation of remedies and liabilities
10.1 Nothing in this agreement shall operate to exclude or limit Cyber Fox’s liability for:
(a) death or personal injury caused by its negligence; or
(b) any breach of section 2 of the Supply of Goods and Services Act 1982; or
(c) fraud; or
(d) any other liability which cannot be excluded or limited under applicable law.
10.2 Cyber Fox 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.
10.3 Subject to clause 10.1, Cyber Fox’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with the Contract or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the total payable by the Customer to Cyber Fox under the Contract.
11.1 The Customer shall indemnify Cyber Fox against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Cyber Fox arising out of or in connection with
(a) The customer’s breach or negligent performance or non-performance of the Contract and/or these Conditions;
(b) the enforcement of the Contract and/or these Conditions;
(c) any claim made against Cyber Fox by a third party arising out of or in connection with the provision of the Services to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract and/or these Conditions by the Customer its employees, agents or subcontractors.
12. Intellectual property rights
12.1 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 this agreement shall be the property of Cyber Fox, and Cyber Fox hereby grants the Customer a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Site.
12.2 The Customer shall indemnify Cyber Fox 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.
12.3 Cyber Fox 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 12.2.
12.4 The indemnities in clause 12.2, clause 12.3 and clause 15.6 are subject to the following conditions:
(a) the indemnified party promptly notifies the indemnifier in writing of the claim;
(b) the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
(c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
(d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
12.5 The indemnities in clause 12.2, clause 12.3 and clause 15.6 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.
13. Site operation and sSuspension of services
13.1 Unless otherwise specified in the Contract the security of the Site shall be the responsibility of the Customer not Cyber Fox. Any breaches of security may incur further charges to the Customer.
13.2 Unless otherwise specified in the Contract Cyber Fox shall only guarantee the correct behaviour of the Site when being viewed on current browsers. Long term compatibility with browsers cannot be guaranteed.
13.3 Unless otherwise specified in the Contract domain administration shall be the responsibility of the Customer not Cyber Fox.
13.4 Third party software used within the Project is not the responsibly of Cyber Fox to update.
13.5 If the Customer’s bandwidth usage reaches levels where is has an adverse effect on other customers of Cyber Fox, Cyber Fox reserves the right to disable and suspend the Site until the Customer reduces its bandwidth usage.
13.6 Cyber Fox reserves the right to suspend the Services in any case where the Customer fails to perform its obligations under the Conditions or the Contract.
14. Data backup
14.1 Data stored on Cyber Fox’s servers is not guaranteed to be backed up. It is recommended that the Customer keeps an independent backup of all data stored on its virtual server. The Customer may not run server processes (e.g. talkers/IRC Bots) from its virtual server. Cyber Fox shall not be held liable for any loss or damage caused by the use or misuse, unavailability or removal of services.
15. Site content
15.1 The Customer shall be fully responsible for the Materials. Cyber Fox is not responsible for proof reading the Materials unless specifically agreed in writing.
15.2 Unless otherwise agreed in writing Cyber Fox will only accept Materials provided in digital format and only up to the quantity limit specified in the Contract. Materials which do not match the Site Specification may be rejected by Cyber Fox or incur further costs.
15.3 If specified in the Contract, Cyber Fox shall utilise existing Site content included with the Materials (if any) so far as possible. Cyber Fox does not however guarantee complete transfer of existing content and unless specified in the Contract has no obligation to improve the content provided.
15.4 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).
15.5 Cyber Fox shall include only the Materials on the Site. The Customer acknowledges that Cyber Fox has no control over any content placed on the Site by Visitors and does not purport to monitor the content of the Site. Cyber Fox reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. Cyber Fox shall notify the Customer promptly if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.
15.6 The Customer shall indemnify Cyber Fox against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.
15.7 Cyber Fox may include the statement “Designed by Cyber Fox Limited” on the home page of the Site in a form to be agreed.
16. Site maintenance
16.1 Cyber Fox shall provide minor Site maintenance for the first two months after the Site goes live up to an average of 30 minutes per month including updating lines and making minor amendments to sentences and/or paragraphs (Site Maintenance Plan). Cyber Fox’s obligations under the Site Maintenance Plan do not extend to updating substantial text on the page, major page reconstruction, new pages, guest books, discussion webs, navigation structure changes, attempted updates by Customer repairs or web design projects delivered to the Customer via diskette.
16.2 The period of two months begins on the date the Site has been published on the Customer’s hosting service. If the Services Specification includes database access using Server Side Script, then very minor page code changes will be accepted under the Site Maintenance Plan. Major page code and/or database structural changes will be charged at current hourly rates.
17.1 Without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than 30 days written notice.
17.2 Without limiting its other rights or remedies, Cyber Fox may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
17.3 Without limiting its other rights or remedies, Cyber Fox may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(e) (being a company) the holder of a qualifying floating charge over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
(g) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(h) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.3(a) to clause 17.3(f) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
(k) the Customer’s financial position deteriorates to such an extent that in Cyber Fox’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
(m) any warranty given by the other party in clause 9 of this agreement is found to be untrue or misleading.
17.4 On termination of the Contract by Cyber Fox pursuant to this clause 17 all licences granted by Cyber Fox under this agreement shall terminate immediately.
17.5 On expiry or termination of this agreement otherwise than on termination by Cyber Fox pursuant to clause 17.3, Cyber Fox 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).
17.6 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to Cyber Fox all of Cyber Fox’s outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has yet been submitted, Cyber Fox shall submit an invoice, which shall be payable by the Customer within 10 working days of receipt;
(b) the accrued rights and remedies of the parties as at termination shall not be affected, 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; and
(c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 18 shall survive termination of the Contract.
19. Force majure
19.1 Cyber Fox shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event. If the Force Majeure Event prevents Cyber Fox from providing any of the Services and/or Goods for more than four weeks, Cyber Fox shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
20. Compliance UK and EU law
20.1 Customers shall be responsible for compliance with UK and European Union Law for internet trading and the sending of unsolicited email (Spam). The Customer’s failure to comply with the UK and EU law will result in the suspension of the Services.
21.1 General Terms
(a) The Customer shall not divulge the Site or email password to any third parties and the Customer shall take all reasonable precautions to ensure that it is not discovered by any third parties. To protect the Customer’s privacy Cyber Fox shall not distribute the Customer’s name to any third parties.
(b) Customers shall not participate in any form of unsolicited bulk emailing or spam.
(c) When the Customer’s account is closed all files (including web pages etc) shall be deleted.
21.2 Assignment and other dealings.
(a) Cyber Fox may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Customer shall not, without the prior written consent of Cyber Fox, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 21.3(a); 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) 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.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
21.5 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
21.6 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
21.7 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
21.8 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by Cyber Fox.
21.9 Governing law & Jurisdiction This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) 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 arising out of or in connection with this Contract or its subject matter or formation.