Business Terms & Conditions
For clients using Eskdale Solutions web hosting and email services, these business terms & Conditions should be read in conjunction with Eskdale Solutions Acceptable Use policy, domain management terms and Exception to Requirements
In these Terms and Conditions:-
"Business Day" means Monday - Friday
"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 Charges" means the charges to be levied in respect of the Design and Development Services;
"Design and Development Services" means the design and development 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;
"Eskdale Solutions" means Eskdale Solutions, a company who's primary office is at Buccleuch Mill, Glenesk Road, Gretna, Dumfries & Galloway, Scotland DG13 0ES
"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 Eskdale Solutions by the Customer from time to time for incorporation in the Site;
"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 Eskdale Solutions 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 Site is hosted;
"Services" means the Design and Development Services 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.
2.1 In consideration of the Charges Eskdale Solutions will provide the Services to the Customer with reasonable skill and care in accordance with these Terms and Conditions.
2.2 Eskdale Solutions 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 Eskdale Solutions 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 Eskdale Solutions 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 Eskdale Solutions has not previously withdrawn it, or if an alternative shorter time period is stipulated in the proposal.
3.3 Eskdale Solutions 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 Eskdale Solutions 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 Eskdale Solutions'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 Eskdale Solutions with access to, and use of, all information, data and documentation, electronic or otherwise, reasonably required by Eskdale Solutions for the performance by Eskdale Solutions of its obligations under these Terms and Conditions; and
4.1.2 allow Eskdale Solutions all necessary access to computer systems and other locations, as reasonably required by Eskdale Solutions for the performance by Eskdale Solutions of its obligations under these Terms and Conditions, including the necessary read/write permissions, usernames and passwords; and
4.1.3 supply Eskdale Solutions with:
(a) all text in electronic format as standard text (.txt), MS Word (.doc), or CD-ROM, or via e-mail; and
(b) all images in a format as prescribed by Eskdale Solutions 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 and destination of all e-mails that are transmitted by it and its employees;
4.2.3 the Customers use of any networks connected to the Site; and
4.2.4 the payment of all hosting fees which are required in order to make the Site live.
4.3 The Customer shall keep secure any identification, password and other information relating to the Customers account and shall notify Eskdale Solutions 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 Eskdale Solutions may from time to time prescribe and shall make no use of the Server which may be detrimental to Eskdale Solutions' other customers.
4.5 The Customer shall be liable to pay to Eskdale Solutions, on demand, all reasonable costs, charges or losses sustained or incurred by Eskdale Solutions 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 Eskdale Solutions confirming such costs, charges and losses to the Customer in writing.
5. Development and acceptance of the site
5.1 The Design and Development 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.
5.2 The Customer will have accepted, or be deemed to have accepted the Site on the earlier of:-
5.2.1 the date when Eskdale Solutions receives a signed project sign-off document; or
5.2.2 the date upon which the Site goes live.
5.3 If the Customer requests any changes which are not considered Minor Changes by Eskdale Solutions, such changes shall be carried out in accordance with the Alteration provisions contained in Clause 16
6. Charges and Payment
6.1 All Charges are normally subject to VAT at the applicable rate (currently 20%). All payments in respect of the Charges must be in Pounds Sterling.
6.2 Support Charges - The Customer shall pay to Eskdale Solutions 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. Eskdale Solutions 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.
6.3 Design and Development 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 Eskdale Solutions has received this amount. The Customer will pay the Design and Development Charges within 7 days of the date of receipt of an invoice.
6.4 Without prejudice to Eskdale Solutions's other rights and remedies, if the Customer fails to pay the Charges on the due date, Eskdale Solutions may:-
6.4.1 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 Eskdale Solutions bank accruing on a daily basis until payment is made, whether before or after any judgment and Eskdale Solutions may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
6.4.2 if payment remains outstanding for 30 days, suspend all Services until payment has been made in full.
6.5 All charges are quoted exclusive of all travel, miscellaneous and other expenses. All expenses incurred by Eskdale Solutions in performing the Services shall be reimbursed by the Customer.
7. Additional Services
7.1 In consideration of the fees at Clause 7.2, Eskdale Solutions will provide the Customer, on their written request, with a complete dump of the Site from the Server. For smaller Sites this will be emailed to the Customer. For larger Sites, Eskdale Solutions shall make up a CD/DVD and send this via post.
7.2 Creating a complete Site dump and emailing to the Customer costs £90. There is a £50 surcharge for larger Sites that need to fit on a CD/DVD and require posting. This is only available when transferring away from Eskdale Solutions.
7.3 Where Eskdale Solutions provides the Customer with a static copy of the Site under Clause 7.1, the copy is fixed at the date the back up was made from the Server.
8.1 The Customer and Eskdale Solutions hereby warrant to the other that they have full power and authority to enter into and perform the obligations under these Terms and Conditions.
8.2 The Customer warrants to Eskdale Solutions that it will use the Site/Server allocated to the Customer for the purpose of the Support Services for lawful purposes. In particular, the Customer warrants that:-
8.2.1 it will not use the Site/Server in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will the Customer authorise or permit any other person to do so;
8.2.2 it will not post, link to or transmit:
(a) any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, profane or otherwise objectionable in any way;
(b) any material containing a virus or other hostile computer program;
(c) any material which constitutes, or encourages the commission of, a criminal offence or which infringes any Intellectual Property Right or similar rights of any person;
(d) it will not send bulk email whether opt-in or otherwise from the Server;
(e) it will not promote a site hosted on Eskdale Solutions's network using bulk email unless all email recipients have explicitly opt-in to receive email directly from the Customer and all emails comply with UK/EU email marketing law and the US CAN-SPAM Act; and
(f) it will not employ programs which consume excessive system resources, including processor cycles and memory.
9. Limitation of Remedies and Liability
9.1 This Clause 9 sets out the entire financial liability of Eskdale Solutions (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Customer in respect of:-
9.1.1 any breach of these Terms and Conditions;
9.1.2 any use made by the Customer of the Services, the Site or any part of them; and
9.1.3 any representation, statement or delictual act or omission (including negligence) arising under or in connection with these Terms and Conditions.
9.2 Eskdale Solutions shall not be liable to the Customer:-
9.2.1 for the accuracy or quality of information received by any person via the Server;
9.2.2 for any amendments made by any third party to the Site;
9.2.3 for any loss or damage to any data stored on the Server.
9.3 Eskdale Solutions shall use its reasonable endeavors to ensure the Site is available at all times but Eskdale Solutions shall not be liable for any interruptions to the Site or down-time of the Server. Eskdale Solutions make no guarantee that the Server will be free from unauthorised users or hackers and will not be liable for non-receipt or misrouting of email or for any other failure of email.
9.4 All conditions, terms, representations and warranties relating to the Services whether imposed by statute or operation of law or otherwise, that are not expressly stated in these Terms and Conditions including the implied warranty of satisfactory quality and fitness for a particular purpose, are hereby excluded to the fullest extent permitted by law.
9.5 Nothing in these Terms and Conditions shall operate to exclude or limit Eskdale Solutions's liability for death or personal injury resulting from the negligence of Eskdale Solutions.
9.6 Eskdale Solutions's total aggregate liability to the Customer for any claim in contract, delict, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the Charges paid by the Customer in respect of the Services which are the subject of any such claim. In any event no claim shall be brought unless the Customer has notified Eskdale Solutions of the claim within one year of it arising.
9.7 Eskdale Solutions shall not be liable to the Customer for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
9.8 The Customer hereby acknowledges and agrees that:-
9.8.1 not all websites have the same ability to be tuned for web promotion purposes;
9.8.2 extensive use of flash, frames or active content all have an effect on a website's ability to achieve a high ranking on search engines;
9.8.3 due to the infinite number of considerations that search engines use when determining a website's ranking, Eskdale Solutions cannot guarantee any particular placement;
9.8.4 acceptance of the Site by any search engine cannot be guaranteed; and
9.8.5 the time it takes for a Website to appear in search results varies from one search engine to another and rankings will also vary as new pages are added.
10. Intellectual Property Rights
10.1 The Customer retains all Intellectual Property Rights in the Materials, and grants Eskdale Solutions a licence to such Intellectual Property Rights to the extent required to perform its obligations pursuant to these Terms and Conditions.
10.2 All Intellectual Property Rights in any works arising in connection with the performance of the Services by Eskdale Solutions shall be the property of Eskdale Solutions. On receipt by Eskdale Solutions of the final payment payable by the Customer in accordance with Clause 6.3, Eskdale Solutions shall (unless otherwise specified within the proposal) grant the Customer a non-exclusive, non-transferable, license to use the IPR arising in connection with the performance of the Services by Eskdale Solutions. For the avoidance of doubt this license does not include any third party material in the Site or rights in any underlying software of the Site (including developer tools) needed to operate the Site.
10.3 If a choice of Site design is presented by Eskdale Solutions to the Customer, only one solution is deemed to be given by Eskdale Solutions as fulfilling its obligations. Eskdale Solutions retains the Intellectual Property Rights in all other designs, unless otherwise agreed in writing between the parties.
10.4 The Customer shall indemnify Eskdale Solutions against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe any Intellectual Property Rights of a third party.
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 Eskdale Solutions reserve the right to remove any Material from the Site which Eskdale Solutions deems Inappropriate Content without notice to the Customer.
11.3 The Customer shall indemnify Eskdale Solutions 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 Eskdale Solutions 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 Eskdale Solutions 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 distributes unsolicited direct marketing materials using Eskdale Solutions' services;
12.1.6 if the Customer, having multiple accounts, uses or allows to be used more than one login session per system account at any time; or
12.1.7 if Customer assigns or transfers any of its rights or obligations under these Terms and Conditions without the prior written consent of Eskdale Solutions.
12.2 On termination of these Terms and Conditions or suspension of the Services by Eskdale Solutions in accordance with this Clause 12 Eskdale Solutions 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 Eskdale Solutions 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 Eskdale Solutions 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 Eskdale Solutions all of Eskdale Solutions's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Eskdale Solutions 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 Eskdale Solutions 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 charge shall be payable by the Customer in order to reactivate the Site to cover administration costs.
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.
The Customer hereby allows Eskdale Solutions 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 Eskdale Solutions's own website.
15. Transferring away from Eskdale Solutions
15.1 If the Customer wishes to move away from Eskdale Solutions, Eskdale Solutions will provide the Customer with a copy of the Website on a DVD. All outstanding Charges must be made in full before this DVD will be provided. Eskdale Solutions cannot be held responsible for setup, migration, support, bugs, maintenance, functionality, security, downtime or any other issues if the Customer's Site is no longer hosted on the Server.
15.2 Where the Customer cancels in accordance with Clause 12.3 and requests that Eskdale Solutions transfer a domain to another internet service provider, the Customer shall reimburse Eskdale Solutions the reasonable costs incurred in transferring the domain, including any charges levied by domain name authorities.
15.3 Eskdale Solutions will not transfer a domain to another internet service provider until all outstanding Charges and all transfer costs payable in accordance with Clause 15.1 are paid in full.
15.4 The Customer acknowledges that when Eskdale Solutions is requested to transfer a domain to another internet service provider: -
15.4.1 Eskdale Solutions does not accept responsibility for any downtime caused by domain migration;
15.4.2 EMAIL: On transfer, all email is purged from the Eskdale Solutions systems and responsibility migrates to the new internet service provider;
15.4.3 WEB: On transfer, all data and backups are purged from the Eskdale Solutions systems;
15.4.4 WEB STATISTICS: Depending on the type of web statistics used, these may transfer automatically with the Site or they may be lost; and
15.4.5 SEARCH ENGINE MARKETING: There is a possibility that, on migration, a Site may take a downturn in search engine positioning. Eskdale Solutions cannot be held responsible for any lowering of visibility that result from a transfer away.
16.1 If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
16.2 If either party requests a change to the scope or execution of the Services, Eskdale Solutions shall, within a reasonable time, provide a written estimate to the Customer of:-
16.2.1 the likely time required to implement the change;
16.2.2 any necessary variations to the Charges arising from the change;
16.2.3 the likely effect of the change on any time-scales quoted; and
16.2.4 any other impact of the change on these Terms and Conditions.
16.3 If the Customer wishes Eskdale Solutions to proceed with the change, Eskdale Solutions has no obligation to do so unless and until the parties have agreed the necessary variations to its Charges, the Services, the Proposal and any other relevant term and documented these in writing.
16.4 Eskdale Solutions may charge for the time it spends assessing a request for change from the Customer on a time and materials basis.
The Customer may not assign or transfer any of its rights or obligations under these Terms and Conditions without the prior written consent of Eskdale Solutions.
18. Variation and Waiver
Eskdale Solutions reserves the right to revise, amend, or modify these Terms and Conditions at any time and in any manner. Notice of any revision, amendment, or modification will be posted in accordance on Eskdale Solutions's web site.
19.1 If any provision (or part of a provision) of these Terms and Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
19.2 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.
20. Entire Agreement
20.1 These Terms and Conditions and any documents referred to in them constitute the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement.
20.2 Each party acknowledges that, in entering into these Terms and Conditions, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in these Terms and Conditions.
20.3 Nothing in this Clause 20 shall limit or exclude any liability for fraud.
21. Governing Law and Jurisdiction
21.1 These Terms and Conditions and any disputes or claims arising out of or in connection with its subject matters are governed by and construed in accordance with Scots law.
21.2 The parties agree hereby submit to the non-exclusive jurisdiction of the Scottish courts.