1. Definitions and Interpretation
The following expressions shall have the following meanings.
1.1 “KWS” means Kelly Web Solutions.
1.2 “Client” means any person who purchases Services and /or Products from KWS.
1.3 “Proposal” means the written proposal or estimate for the Products and/or Services.
1.4 “Project” means the work specified in the Proposal once it has been accepted by the Client
1.5 “Initial Stage” means the stage where the Project has been completed but Client review is required to check for errors
1.6 “Fee” means the total sum due by the Client for the Products and/or Services agreed in the Proposal
1.7 “Terms of Service” means the Terms of Service as set out in this document and any subsequent Terms of Service agreed in writing between KWS and the Client.
1.8 “Agreement” means these Terms of Service read in conjunction with the Proposal.
1.9 “Services” means any consultancy or other services (for example web design, SEO, website hosting, and emailing) which KWS is to provide to the Client in accordance with these conditions.
1.10 “Intellectual Property Rights” means any patent, trade mark, service mark, registered design, copyright, design right, right to extract or exploit information from a database, database rights, knowhow, confidential information or process, any application for any of the above, and any other intellectual property right recognized in any part of the world whether or not presently existing or applied for.
1.11 “Products” means the website, artwork, designs or other products (including any installment of any products) which KWS is to create and /or supply to the client in accordance with these conditions.
1.12 “Deposit” means the payment of 50% of the Fee, or any other percentage which may be specifically agreed and set out in the Proposal.
1.13 “Rolling Monthly Contract” means a 12 month agreement to provide Services. This contract will automatically roll into a new 12 month agreement unless written notice is given to KWS by the Client by 4pm on the last working day of the 11th month.
2.1 These Terms of Service shall apply in this Agreement in the supply of Services and/or Products by KWS to the Client and shall supersede any other documentation or communication between the parties.
2.2 Any variation to these Terms of Service must be agreed in writing by KWS.
2.3 Nothing in these Terms of Service shall prejudice any condition or warranty, expressed or implied, or any legal remedy to which KWS may be entitled in relation to the services by virtue of any statute, law or regulation.
2.4 Any advice or recommendation given by KWS or its employees or agents to a client as to the use of any products not confirmed in writing by KWS is acted upon at the Client’s own risk and accordingly KWS is not liable for any such advice or recommendation not so confirmed.
2.5 Any error or omission in any sales literature, quotation, price list, invoice or other document or information issued by KWS is subject to correction without liability to KWS.
2.6 The Services shall be carried out at the place of work of KWS or the Client or any other location that KWS deems appropriate.
2.7 KWS shall provide technical support, if required by phone or by e-mail during the hours of 9am – 5pm Monday to Friday. If an issue occurs outside these hours the client may e-mail KWS or leave a telephone message. KWS will endeavor to respond to the client by the start of the next business day.
2.8 Dates given for the delivery of services are estimates only and not guaranteed. Time for delivery shall not be of the essence of the agreement and KWS shall not be held liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery.
3.1 KWS will provide the Client with a written Proposal describing the Products and Services that the Client has instructed them to provide
3.2 The Client is responsible to KWS for ensuring accuracy of any information referred to in the Proposal, and for giving KWS any necessary information relating to the Product and/or Services within a sufficient time to enable KWS to perform the contract in accordance with its Terms.
3.3 The quantity, quality, description and cost of the Products and/or Services provided are set out in the Proposal. Any variation to the Services or the Product must be agreed by KWS in writing.
3.4 Both parties may make any changes to the Proposal required to conform with any applicable statutory or US requirements or, in the case of any products, which do not materially affect their quality or performance.
3.5 The Proposal will be valid for a period of 30 days of the date specified in the Proposal.
4. The Project
4.1 The Proposal, once accepted by the Client will become a Project and may not be canceled by the Client except with KWS’s written agreement and on terms that the Client is to indemnify KWS against all loss (including loss of profit), costs (including the costs of all labour and materials used), damages, charges and expenses incurred by KWS as a result of cancellation. Acceptance of the Proposal is deemed once the Client has signed a copy of the Proposal and returned it to KWS.
4.2 Once KWS have completed the Initial Stage they will ask the Client to test the product and /or Services for any errors. The Client is required to check and report on errors to KWS within 60 days. KWS will then rectify the errors. The Project will then be completed.
4.3 If the Client requires any amendments to the Project KWS reserves the right to charge for these amendments. Price for amendments will be given first, and the Client will have the option to refuse the amendments or agree to the amendments prior to proceeding.
4.4 When translating designs to the Web, KWS may use their best judgement to make minor cosmetic alterations without notice in order to improve consistency of layout, accessibility, or maintainability of code. Such minor alterations will not necessarily be included in the Proposal. However if the Client is unhappy with these minor alterations they should notify KWS of this at the end of the Initial stage when they are reviewing the Project.
5.1 All sites will be hosted by KWS until such time as all payments due and agreed within the Proposal are paid. After that time it is between KWS and the Client to agree whether KWS continues to host this site.
5.2 Where KWS have agreed with the Client that KWS will provide the hosting:
5.2.1 The Client agrees that KWS is not liable for any losses caused by Bugs, performance issues or failure of their code. KWS will fix Bugs that affect browsers with more than 3% of internet usage at the time of the site’s launch if the site has been hosted continually on KWS’s servers since its launch.
5.2.2 The Client agrees that liability will not be attributed to KWS in the event of website down time or the inability to operate the webpages or website;
5.2.3 The Client agrees that KWS or its agents will not be liable if they fail to register such domain names as requested by the Client. KWS and its agents will use its reasonable endeavors to ensure such registration.
5.3 Where the Client is hosting the site the Client agrees that they are responsible for ensuring that their hosting environment is compatible with the code provided by KWS.
5.4 Additionally where the Client is hosting the site KWS agree to provide an archive containing the web directory of the site, and where applicable a dump of the database, once final payment has been received for the Project.
5.5 The fee payable to KWS for hosting the website will be payable by the Client to KWS on a Rolling Monthly Contract.
5.6 The Client can cancel the hosting at any time after the date of this Agreement and after any contract commitment term has expired by giving 30 days notice in writing. KWS will transfer all site files and assets in use on the website to a contact given by the Client within this 30 day period, providing all outstanding balances have been remitted and any other terms laid out in this Agreement have been observed. KWS will not accept any responsibility for third-party delays which may or may not cause a period of downtime for the website whilst hosting is transferred. In such a circumstance, Intellectual Property Rights will not be altered or affected in any way.
5.7 In the event that payment is not received and the site is suspended for a period of 60 days or more all files will be deleted and the site will be lost
6. Security and Bugs
6.1 Where KWS is working on any site, whether it is hosted by KWS or not, and the site is hacked or has a breach of security the cost of repairing this will be the responsibility of the Client. Any compromised sites will be taken down without prior notice until they are secure.
6.2 The Client agrees that KWS will undertake the repairs required when a site has been hacked.
6.3 KWS agree that they will investigate bugs without any charge to the Client. However KWS reserves the right to charge for investigation time if the problem caused by the bug is:
- Due to the client’s local hardware/software
- Due to third party browser extensions
- Due to unsupported browsers
- Intended functionality
7. Price and Payment
7.1 The Client shall pay KWS the Deposit at the time that the Proposal is agreed. The Proposal is agreed on the date that it is signed by the Client. The Deposit is non refundable.
7.2 The Client shall pay KWS a percentage of the Fee at the end the Initial Stage. This percentage shall be set out in the Proposal. If no specific sum is agreed in the Proposal then this percentage will be 40%. The balance due to KWS shall be paid when the Project is complete. The Project is complete when the errors referred to in Clause 4.2 have been rectified.
7.3 Alternatively KWS may agree, at their discretion, to accept payment of part of the Fee by monthly installments. The Client shall pay KWS the Deposit at the time that the Proposal is agreed, and then make payment every month thereafter of a sum agreed with KWS, until the Fee is paid in full. Payments shall start on 1st day of the month following the month on which the Proposal is agreed. In the event that a Client fails to pay any monthly installment within 10 working days after it is due, KWS may suspend the site until payment is received. KWS may charge a fee of $50 to reinstate the site. In the event that any payment is not received and the site is suspended for a period of 60 days or more all files will be deleted and the site will be lost.
7.4 KWS may also accept payment of Products and/or Services on a Rolling Monthly Contract. Payments due on Rolling Monthly Contact will be due on the 1st day of each month.
7.5 The terms for payment of Hosting are set out in Clause 4 above as well as within Clause 5 herein.
7.6 All recurring or account payments must be paid by the Client on the date that the Proposal is accepted.
7.7 Any discount provided on the Proposal is only valid if the payment terms which are set out in these Terms of Service are adhered to. If any payment is not paid by the date due under these Terms of Service then the discount will be removed and the full Fees due.
7.8 All prices quoted are valid for 30 days only and after such other time as specified in the Proposal or until earlier expectance by the Client, after which time they may be altered by KWS without notice.
7.9 KWS may, by giving notice to the client at any time before delivery, increase the price of the products and/or services to reflect any increase in the cost to KWS due to:-
- i. Any factor beyond the control of KWS
- ii. Any change in delivery dates or performance, quantities or certification for the Products and/or Services requested by the Client or
- iii. Any delay caused by any instructions of the Client or failure of the client to give KWS adequate information of instruction.
7.10 The Client is liable to reimburse KWS any expenses properly incurred.
7.11 The Client must settle all payments for Services and/or Products within 10 working days of the date on which they are due to be paid unless otherwise agreed in writing prior to the date on which the Proposal is signed. Payments of monthly instalments or Rolling Monthly Contract are due on the 1st of the month. Payment of any other fees are due on the date stated on the invoice.
7.12 KWS is entitled to vary the price to take account of reasonable increase in hourly rate if applicable; and any variation must be intimated to the Client in writing by KWS
7.13 The Client will pay interest on all late payments at a rate of 2% per month.
7.14 Any legal or Court costs arising through debt collection will be payable by the Client. In the event that payment is not received within the time requested within these Terms of Service legal proceedings will be commenced by KWS.
8. Client’s obligations
8.1 The Client agrees to co-operate with KWS and shall provide any support, information and facilities to KWS as they may require.
8.2 Where KWS is working on sites that have not been built or hosted by KWS, the Client agrees to provide valid access credentials for any services that KWS require prior to commencement of the Project. These may include, but are not limited to, file server, database and the systems CMS. KWS may make an administrative charge if credentials are omitted or incorrect.
8.3 The Client agrees that if they use a CMS that it must be up to date. If KWS need to update the CMS in order to complete the Project they will charge a fee for this. Additionally if any debugging issues occur as a result of the CMS update KWS will charge an additional fee for this debugging.
8.4 The Client is responsible for obtaining all necessary permits or approval to enable KWS to provide the Services and/or the Products.
8.5 The Client warrants that the display of and distribution of virtual images, of which they are responsible, via the internet for e-mail, complies with all relevant legislation.
9. Intellectual Property Rights and Ownership
9.1 Title and copyright to the website graphics, general artwork, commissioned artwork, illustrations, website design, programming, copy site content, coding and other work created in the project shall pass to the client at the completion.
9.2 Title and copyright to any custom website programming and/or coding shall remain the property of KWS and used on license by the Client unless negotiated and agreed in writing.
9.3 Where the Client terminates the Project before completion, all work done towards the Project remains in ownership of KWS.
9.4 Publication and/or release of any graphics design within the Project may not take place before cleared funds have been received by KWS.
9.5 The Client may request in writing KWS’s permission to use Project material (for which KWS holds the copyright) in forms other than for which it was originally supplied. KWS may, in its absolute discretion grant this and may charge for the provision of the same.
9.6 KWS shall take all reasonable steps to ensure that they, or others to whom work has been delegated, refrain from causing damage to the Intellectual Property Rights belonging to the Client.
9.7 The Client shall not distribute any Intellectual Property Rights belonging to KWS to any third party without written consent to KWS.
9.8 The Client warrants that any material belonging to the Client and its use by KWS for the purpose of providing Services and/or Products will not infringe the copyright or other rights of any third party and the Client shall indemnify KWS against any loss, damages, costs, expenses or other claim arising out of any such infringement.
9.9 Should the Client supply material to KWS believing it to be copyright and royalty free, which subsequently emerges to have copyright and royalty limitations, the Client agrees to permit KWS to remove and/or replace the file at the Client’s expense.
10. Web Design and Development
10.1 Web Design may be used on one resolving domain name only. The Client is not permitted to use a design for more than one website without prior written agreement from KWS.
10.2 KWS may from time to time recommend to the Client that updates are needed to their website to comply with but not limited to, the following:
- New Legislation
- Software releases and
- Web standards
- KWS reserves the right to charge for these updates as additional works.
10.3 KWS will quote for any work involved in changing the website design or website code in order for it to work with updated browser software, domain name or hosting changes. KWS will endeavour to ensure that the site will function correctly on popular browsers in use at the time of release but does not provide any guarantee that the site will function on all browser software.
11. Search Marketing
11.1 The Client agrees that KWS is unable to guarantee that the Client’s website will achieve a favourable position, or any position, within a particular search engine and as such, shall not be liable for failure to achieve a particular position.
11.2 The Client agrees that KWS shall not be liable for any website URL’s dropped or excluded by the search engine for any reason.
11.3 The Client agrees that KWS do not warrant or represent that search engines reported will be accurate, correct, timely, reliable or otherwise due to their reliability on Third Party software.
12.1 The Client is responsible for keeping the password and user name that may be assigned on registration confidential. The Client is responsible for all actions and activities that take place under the Client account.
12.2 If the Client believes there has been unauthorized use of the account or suspects that confidentiality has been compromised the Client must contact KWS immediately.
13.1 The Agreement shall continue until the Services and/or Products have been provided or any subsequent date as mutually agreed in writing by both parties or until terminated by either party in accordance with these Terms of Service.
13.2 Where KWS have agreed to provide a Rolling Monthly Contract the Client is required to provide Notice of their intention to terminate the agreement by the end of the 11th Month. If the Client fails to provide notice by 4pm on the last working day of the 11th month the contract will roll into a new 12 month period starting on the day following the last day of the previous contract period.
13.3 The Client may request in writing that KWS cancel a Proposal. KWS will only accept this request for termination if the work has not yet commenced. If work has commenced on a Proposal, KWS will invoice the Client for the work carried out to date.
13.4 KWS reserves the right not to work with any Client who has a site which it deems as unlawful or inappropriate, contains a virus or hostile program, constitutes harassment, racism, violence, obscenity, harmful intent, spamming, contains adult content, commits a criminal offense, infringes privacy or copyright or any other questionable media at its own discretion. KWS reserves the right without notice to cancel, reject, refuse sale or work with a Client without reason for such rejection or refusal.
13.5 KWS reserves the right to cancel the Clients email access; if KWS receive excessive spam, complaints about the Client, it is suspected the Client is abusing the email account to send spam, KWS suspect the Client of using the services of pornographic, offensible, inappropriate material, invoice payment is not made in accordance with these terms.
13.6 KWS may terminate the Agreement if the Client has failed to make any payment due within 4 weeks of the sum being requested.
13.7 Either party may terminate the Agreement by notice in writing to the other if:-
- i. the other party commits a material breach of these Terms of Service and, in the case of a breach capable of being remedied fails to remedy it within a reasonable time of being given notice by the other party to do so,
- ii. or the other party commits a material breach of these Terms of Service which can not be remedied under any circumstances
- iii. or the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction) or a Court jurisdiction makes an Order to that effect
- iv. or the other party ceases to carry on its business or substantially the whole of its business
- v. or the other parties declared insolvent, or convenes in meeting of or makes or proposes to make any arrangement or composition with its creditors or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its asset
13.8 In the event of termination the Client must make over to KWS any payment for work done and expenses incurred up to the date of termination. In this situation KWS is entitled to payment for work done to that date. The invoice for such work must be paid by the Client within 30 days of receipt failing which KWS shall be entitled to payment of the full price for the proposals/brief forthwith.
13.9 Any rights to terminate the agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of the agreement as at the date of the termination.
14.1 No warranty is provided by KWS in relation to the performance of Third Parties engaged to perform part of the project and KWS shall not be liable for any failure, action, omission or error on the part of the Third Party provider.
14.2 Both parties warrant their authority to enter into this Agreement and have obtained all necessary approvals to do so.
15 Limitation of Liability
15.1 KWS shall not be liable under any circumstances to the Client or any third party for any indirect or consequential loss of profit, consequential or other economic loss suffered by the Client howsoever caused, as a result of any negligence, breach of contract, misrepresentation or otherwise.
15.2 Notwithstanding anything contained in the Terms of Service, or in the Proposal, KWSs liability to the Client in respect of the Project, in contract, tort (including negligence and breach of statutory duty) or howsoever otherwise arising shall be limited to the price for the Project specified in the Proposal.
15.3 KWS shall not be held not liable for any bugs, performance issues or failure of their code
15.4 The Client agrees that liability will not be attributed to KWS in the event of website down time or the inability to operate the webpages or website;
15.5 The Client agrees that KWS or its agents will not be liable if they fail to register such domain names as requested by the Client. KWS and its agents will use its reasonable endeavours to ensure such registration.
16.1 The Client shall indemnify KWS against all claims, costs and expenses which KWS may incur and which arise directly or indirectly from the Clients breach of any of its obligations under these Terms of Service.
16.2 The Client agrees that KWS is not liable for any claims, losses, costs incurred or damages due to any failure to carry out services within a given delivery timescale.
16.3 The Client agrees that KWS is not liable for absence of service as a result of illness or holidays.
16.4 The Client agrees that KWS shall not be liable for the website content, hosting, and choice of domain name.
16.5 The Client agrees that KWS shall not be liable for any infringement of copyright or propriety rights, mis information or delivery of defective products or services.
16.6 The Client is to indemnify KWS for all loss, damages, costs and expenses incurred by KWS in connection with any claim for infringement of any intellectual property rights of any person.
17 Force Majeure
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the party shall be entitled to a reasonable extension of its obligations.
The Client shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of KWS.
19 Relationship of Parties
Nothing in the Agreement shall be construed as establishing or implying a partnership or joint venture between the parties or suggest that either of the parties are agent for the other.
20 Third Party rights
Nothing in these Terms of Service intend to or confer any rights on a third party.
If any term or provision of these Terms of Service is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms of Service had been agreed with the invalid, illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Terms of Service herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms of Service.
Any notice to be given by either party to the other may be served by email, personal service, or by mail to the address of the other party given in the Proposal or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally, or if sent by mail shall be deemed to have been delivered in the ordinary course of mail.
24 Entire Agreement
These Terms of Service supersede any previous agreements, arrangements, documents or other undertakings either written or oral.
25 Governing Law
These Terms of Service shall be governed by and construed in accordance with the law of the United States and Commonwealth of Virginia and the parties hereby submit to the exclusive jurisdiction of the Commonwealth of Virginia courts.